Contracts. (a) Part 2.10 of the Disclosure Schedule identifies: (i) each Ibex Contract relating to the employment of, or the performance of services by, any employee, consultant or independent contractor; (ii) each Ibex Contract relating to the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary Asset; (iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology; (iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship; (v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities; (vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex; (vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement; (viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities; (ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18); (x) each Ibex Contract constituting or relating to a Government Contract or Government Bid; (xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices; (xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and (xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.") (b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. (c) Except as set forth in Part 2.10 of the Disclosure Schedule: (i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract; (ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract; (iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and (iv) Ibex has not waived any of its material rights under any Material Contract. (d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract. (e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted. (f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996. (g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts. (h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization and Merger (Castelle \Ca\), Agreement and Plan of Reorganization and Merger (Castelle \Ca\)
Contracts. (a) Part 2.10 Other than this Agreement, the Bank Spin-Off Agreements (when entered into pursuant to Section 5.04), and any Contract entered into after the date of this Agreement and prior to the Disclosure Schedule identifiesClosing Date ( when permitted under Section 5.01(a)) neither the Company nor any Company Subsidiary is a party to or bound by:
(i) each Ibex any Contract relating required to be filed by the employment of, or Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the performance of services by, any employee, consultant or independent contractorSecurities Act that has not been so filed;
(ii) each Ibex Contract relating to the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing any material restriction on Ibex's the right of the Company or ability any Company Subsidiary (other than the Bank Subsidiaries) to (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for dispose of the securities of any other Person or to transact business or deal in any other manner with any other Person, or (C) develop engage or distribute compete in any technology;
(iv) each Ibex Contract creating line of business or involving in any agency relationship, distribution arrangement geographic area or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance that contains restrictions on pricing or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance exclusivity or non-solicitation provisions with respect to any asset of Ibex;customers; or
(viiiii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was than Contracts entered into outside in the ordinary course of business or was inconsistent with Ibex's past practices;
that, by their terms, (xiix) any other Ibex Contract that has have a term of more less than 60 days one year, (y) are fully terminable by the Company or such Company Subsidiary without any material fee, penalty or liability payable in connection therewith and that may (z) do not be terminated involve potential payments or obligations by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value party in excess of $10,000 50,000,000, (A) any material coal, diesel, natural gas, liquefied natural gas, liquefaction, transportation, power sale, power purchase or offtake agreement or other fuel purchase, sale or transportation agreement, (B) any agreement that contains material “take or pay,” “liquidated damages,” “termination, closeout or liquidation” or other similar provisions or (C) any contract that does not by its terms fully expire, or is not by its terms fully terminable by the Company or such Company Subsidiary without any material fee, penalty or liability payable in connection therewith, not later than two (2) years after the date hereof, and that involves potential payments or obligations by any party in excess of $50,000,000. All Contracts of the type referred to in clauses (i) (whether or not such Contracts have been filed by the Company or any Company Subsidiary with the SEC), (ii) or (iii) of this Section 3.15(a) are referred to herein as “Company Material Contracts.”
(b) Except for matters which, individually or in the aggregate, or (B) the performance of services having have not had and would not reasonably be expected to have a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "Company Material Adverse Effect, (i) each Company Material Contract (including, for purposes of this Section 3.15(b)" through "(xiii)" above are referred to in , any Contract entered into after the date of this Agreement as "that would have been a Company Material Contracts.")
(bContract if such Contract existed on the date of this Agreement) Ibex has delivered to Castelle accurate is a valid, binding and complete copies of all written Contracts identified in Part 2.10 legally enforceable obligation of the Disclosure Schedule, including all amendments thereto. Part 2.10 Company or one of the Disclosure Schedule provides an accurate description of Company Subsidiaries, as the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effectcase may be, and, to the best Knowledge of the knowledge Company, of Ibex and the Designated Shareholdersother parties thereto, is enforceable except, in each case, as enforcement may be limited by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency insolvency, reorganization or similar Laws affecting creditors’ rights generally and the relief by general principles of debtorsequity, and (ii) rules of law governing specific performance, injunctive relief each such Company Material Contract is in full force and other equitable remedies.
effect and (ciii) Except as set forth in Part 2.10 none of the Disclosure Schedule:
(i) Ibex has not violated Company or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that Company Subsidiaries is (with or without notice or lapse of time) will, or could reasonably be expected toboth) in breach or default under any such Company Material Contract and, (A) result in a violation or breach of any to the Knowledge of the provisions Company, no other party to any such Company Material Contract is (with or without notice or lapse of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contracttime, or (Dboth) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or in breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contractthereunder.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Hawaiian Electric Co Inc), Merger Agreement (Nextera Energy Inc)
Contracts. (a) Part 2.10 Section 3.10(a) of the Company Disclosure Schedule identifies each Contract to which any Acquired Company is a party, or by which it is bound, that constitutes a Material Contract as of the date of this Agreement and identifies, with respect to each Material Contract, the clause of Section 3.10(a) to which it applies. For purposes of this Agreement, each of the following to which any Acquired Company is a party or by which it is bound as of the date of this Agreement (other than nondisclosure agreements entered into (x) in the ordinary course of business consistent with past practice or (y) in connection with discussions, negotiations and transactions related to this Agreement or other potential strategic transactions) constitutes a “Material Contract”:
(i) each Ibex any Contract relating that is a settlement, conciliation or similar agreement with or approved by any Governmental Body and pursuant to which (A) any Acquired Company will be required after the employment of, date of this Agreement to pay any monetary obligations or the performance of services by, (B) that contains material obligations or limitations on any employee, consultant or independent contractorAcquired Company’s conduct;
(ii) each Ibex any Contract relating to (A) materially limiting the acquisition, transfer, use, development, sharing freedom or license right of any technology Acquired Company to engage in any line of business or to compete with any Proprietary Assetother Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by any Acquired Company, or (C) containing exclusivity obligations or otherwise materially limiting the freedom or right of any Acquired Company to sell, distribute or manufacture any products or services for any other Person;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business requires by its terms or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) is reasonably expected to require the payment or delivery of cash or other consideration to any Acquired Company in an amount or having a value in excess of $10,000 4,000,000 in the aggregatefiscal year ending December 31, 2019, or (B) the performance of services by any Acquired Company in an amount having a value in excess of $10,000 4,000,000 in the aggregate. fiscal year ending December 31, 2019, and in each case (Contracts A) that cannot be cancelled by such Acquired Company without penalty or further payment without more than sixty (60) days’ notice and (B) excluding commercially available off-the-shelf software licenses and Software-as-a-Service offerings, generally available patent license agreements, material transfer agreements, clinical trial agreements and non-exclusive outbound license agreements (in each case, entered into in the respective categories described ordinary course of business);
(iv) any material distribution, wholesale, third-party logistics, pharmacy benefit manager or payer Contract;
(v) any Contract relating to Indebtedness in clauses "excess of $500,000 (iwhether incurred, assumed, guaranteed or secured by any asset) of any Acquired Company;
(vi) any Contract with any Person constituting a material joint venture, collaboration, partnership or similar profit sharing arrangement;
(vii) any Contract that by its express terms requires any Acquired Company, or any successor to, or acquirer of, any Acquired Company, to make any payment to another Person as a result of a change of control of any Acquired Company (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(viii) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the capital stock of any Acquired Company, the pledging of the capital stock or other equity interest of any Acquired Company or the issuance of any guaranty by any Acquired Company;
(ix) any (A) In-bound License and (B) Out-bound License;
(x) any Contract pursuant to which any Acquired Company has continuing obligations or interests involving (A) “milestone” or other similar contingent payments, including upon the achievement of regulatory or commercial milestones which would result in a payment in excess of $2,000,000, or (B) payment of royalties or other amounts calculated based upon any revenues or income of any Acquired Company, in each case that cannot be terminated by such Acquired Company without penalty without more than sixty (60) days’ notice;
(xi) each Contract for the acquisition or divestiture of a business or of material assets that contains continuing representations, covenants, indemnities or other obligations (including “earn out” or other contingent payment obligations)" through ", but excluding any material transfer agreements, clinical trial agreements and non-exclusive licenses, in each case, that were entered into in the ordinary course of business;
(xii) any Contract that relates to any swap, forward, futures, or other similar derivative transaction with a notional value in excess of $500,000;
(xiii) any Contract between any Acquired Company and any Governmental Body;
(xiv) any Contract for material Leased Real Property;
(xv) any other Contract that is currently in effect and has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act; and
(xvi) any Contract (A) with any Affiliate, director, executive officer (as such term is defined in the Exchange Act)" above are referred , Person holding 5% or more of the Shares, or, to the knowledge of the Company, any Affiliate (other than the Company) or immediate family member of any of the foregoing or (B) in this Agreement as "Material Contractswhich any of the foregoing Persons has a direct or indirect material financial interest.")
(b) Ibex The Company has either delivered or made available to Castelle Parent an accurate and complete copies copy of all written Contracts identified each Material Contract or has publicly filed each Material Contract in Part 2.10 the Electronic Data Gathering, Analysis and Retrieval (E▇▇▇▇) database of the Disclosure ScheduleSEC. Except as has not had, including all amendments thereto. Part 2.10 and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) no Acquired Company nor, to the knowledge of the Disclosure Schedule provides an accurate description Company, any other party is in material breach of, or material default under, any Material Contract and no Acquired Company nor to the knowledge of the terms Company, any other party to a Material Contract has taken or failed to take any action that with or without notice, lapse of time or both would constitute a material breach of or material default under any Material Contract; (ii) each Ibex Material Contract that is not in written form. Each Contract identified in Part 2.10 is, with respect to the Acquired Companies party thereto and, to the knowledge of the Disclosure Schedule is Company, each other party thereto, a valid and binding agreement in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, except as such enforcement may be subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application applicability relating to bankruptcy, insolvency and the relief of debtorsor affecting creditors’ rights, and (ii) rules of law governing specific performance, injunctive relief by general equitable principles; and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31January 1, 19922019 through the date of this Agreement, Ibex no Acquired Company has not received or delivered any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex that has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreementsince been cured.
Appears in 2 contracts
Sources: Merger Agreement (Gilead Sciences Inc), Merger Agreement (Immunomedics Inc)
Contracts. (a) Part 2.10 Section 3.14(a) of the Disclosure Schedule identifieslists the following Contracts (x) that are Acquired Contracts and to which Seller or any of its Affiliates is a party or (y) to which an Acquired Company is a party, in each case as of the date hereof:
(i) each Ibex Contract relating with any Person listed or required to be listed on Section 3.21(a) or Section 3.21(b) of the employment of, or the performance of services by, any employee, consultant or independent contractorDisclosure Schedule;
(ii) each Ibex Contract relating with any current employee, officer, director, manager, consultant or independent contractor that provides services to the acquisition, transfer, use, development, sharing Business or license an Acquired Company that cannot be terminated on notice of 30 days or less without any technology obligation (A) with annual required payments in excess of $[****] or any Proprietary Asset(B) that provides post-termination or severance payments or benefits with a value in excess of $[****];
(iii) each Ibex Contract imposing that restricts or prohibits any Seller Entity (in each case, with respect to the Business) or Acquired Company from soliciting customers, suppliers, or employees, conducting business in any markets or territories, or competing with any Person (including any such Contract with any restriction on Ibex's right relating to geography or ability (A) Persons with whom a Seller Entity or Acquired Company is prohibited to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal engage in any other manner with any other Person, or (C) develop or distribute any technologybusiness);
(iv) each Ibex Contract creating pursuant to which any Person provides management or involving administrative services to any agency relationshipSeller Entity (in each case, distribution arrangement with respect to the Business) or franchise relationshipAcquired Company with annual required payments in excess of $[****] and that cannot be terminated on notice of 30 days or less without any obligation or pursuant to which any Seller Entity or Acquired Company provides management or administrative services to any other Person and each other Contract with any Seller Entity (in each case, with respect to the Business), Acquired Company or any other Person to which any Seller Entity or Acquired Company provides business, administrative, back office or other similar services with annual required payments in excess of $[****] and that cannot be terminated on notice of 30 days or less without any obligation;
(v) each Ibex Contract relating Lease, rental or occupancy agreement, license to the acquisitionreal property, issuance or transfer installment and conditional sale agreement (except personal property leases and installment and conditional sales agreements having aggregate payments of any securitiesless than $[****] and with terms of less than one year);
(vi) each Ibex Contract relating to for the creation of purchase by any Encumbrance Seller Entity (in each case, with respect to the Business) or Acquired Company of any asset supply or product that calls for performance over a period of Ibexmore than one year (other than any such Contract that (A) is or on the Closing Date will be terminable at will or upon not more than 30 days’ notice without any obligation or (B) contemplates aggregate payments of less than $[****] per year);
(vii) any Contract with a sales representative, manufacturer’s representative, distributor, dealer, broker, sales agency, advertising agency or other Person engaged in sales, distributing or promotional activities in each Ibex Contract involving case creating an exclusive relationship with any Seller Entity (in each case, with respect to the Business) or incorporating any guarantyAcquired Company, any pledge, any performance or completion bond, any indemnity or any surety arrangementagreement to act as one of the foregoing on behalf of the Business or an Acquired Company on an exclusive basis;
(viii) each Ibex Contract creating any Contract, whether or not fully performed, relating to any acquisition or disposition of any Subsidiary, business, division or line of business of an Acquired Company or the Business;
(ix) each joint venture, partnership or joint venture or any Contract (in the case of a Contract to which a Seller Entity is a party, relating to the Business) involving a sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of Liabilities with any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18)Person;
(x) each Ibex Contract constituting or power of attorney granted by any Seller Entity relating to a Government Contract the Business or Government Bidany Acquired Company;
(xi) each Contract with any other Ibex Governmental Body (in the case of such a Contract that was entered into outside to which a Seller Entity is a party, relating to the ordinary course of business or was inconsistent with Ibex's past practicesBusiness);
(xii) each Contract under which any Seller Entity or Acquired Company has incurred or guaranteed any outstanding Debt (in the case of such a Contract to which a Seller Entity is a party, relating to the Business), in each case in excess of $[****] or encumbering any of the Acquired Assets or any assets of an Acquired Company in excess of $[****];
(xiii) each Contract providing for the payment of any cash or other compensation or benefits upon the consummation of the Transactions;
(xiv) each Contract with any labor union (in the case of such a Contract to which a Seller Entity is a party, to the extent relating to the Business);
(xv) each Contract under which any Seller Entity (and which relates to the Business) or any Acquired Company has advanced or loaned to any other Ibex Person outstanding amounts in the aggregate exceeding $[****];
(xvi) any settlement, conciliation, leniency or similar agreement (with respect to a Seller Entity, relating to the Business) with any Governmental Body pursuant to which any Seller Entity (in each case, with respect to the Business) or Acquired Company will have any continuing obligations following the Closing Date;
(xvii) any “take or pay” Contract (in the case of a Contract with a Seller Entity, relating to the Business) or any other Contract (in the case of a Contract with a Seller Entity, with respect to the Business) that requires any Seller Entity or Acquired Company to purchase or sell products or services exclusively, or purchase or sell a minimum quantity or value of products or services, to or from any Person or containing a “most favored nation” or “most favored customer” or similar provision in favor of the other party (in each case, other than any such Contract that has a term of (A) is or on the Closing Date will be terminable at will or upon not more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination 30 days’ notice by ▇▇▇▇Buyer without any obligation or (B) contemplates aggregate payments of less than $[****] per year); and
(xiiixviii) any other Ibex Contract that contemplates or involves each Intellectual Property Agreement (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregatecase of an Intellectual Property Agreement with a Seller Entity, or (B) relating to the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(iBusiness)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex Seller has delivered to Castelle accurate Buyer a correct and complete copies copy of each written Material Contract, together with all written Contracts identified in Part 2.10 of the Disclosure Scheduleamendments, including all amendments exhibits, attachments, waivers or other changes thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex There are no oral Material Contracts.
(c) Each Material Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and legal, valid, binding, enforceable, in full force and effect, and, subject to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Enforceability Limitations. Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(hon Section 3.14(c) of the Disclosure Schedule, Ibex (i) no Material Contract has not entered into been materially breached or canceled by any Seller Entity or Acquired Company or, to the Knowledge of Seller, any other party thereto, and, since January 1, 2017, no Seller Entity or Acquired Company has received any written notice of termination, cancellation, material modification, acceleration or material breach or default with respect to any Material Contract, (ii) each Seller Entity and Acquired Company has performed, in all material respects, all material obligations under such Material Contracts required to be performed by such Seller Entity or Acquired Company, (iii) there is not negotiating no existing fact or event which, upon giving of notice or lapse of time or both, would constitute a material breach or default by the Seller Entity or Acquired Company party thereto under any Government such Material Contract or Government Bidwould permit the termination, material modification or acceleration of such Acquired Contract or Material Contract, and Ibex is not and will not be required (iv) no Seller Entity or Acquired Company has assigned, delegated or otherwise transferred to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or third party any of the other agreements referred to in this Agreementits rights, title or (B) the consummation of the Merger or interest under any of the other transactions contemplated by this Agreementsuch Material Contract.
Appears in 2 contracts
Sources: Purchase Agreement (Cree Inc), Purchase Agreement (Cree Inc)
Contracts. (a) Part 2.10 Except for (x) this Agreement, (y) Contracts listed on Section 3.16 of the Company Disclosure Schedule identifies:Letter and (z) Contracts filed as exhibits to the Filed Company SEC Documents, as of the date of this Agreement, none of the Company or the Company Subsidiaries is a party to or bound by any of the following Contracts (each such Contract, a “Company Material Contract”):
(i) each Ibex any Contract relating that would be required to be filed by the Company as an exhibit to the employment ofCompany’s Annual Report on Form 10-K pursuant to Item 601(b)(2), (4), (9) or (10) of Regulation S-K under the performance Securities Act of services by1933, any employee, consultant or independent contractoras amended (the “Securities Act”);
(ii) each Ibex any Contract relating to containing covenants binding upon the acquisition, transfer, use, development, sharing Company or license the Company Subsidiaries that materially restrict the ability of any technology the Company or any Proprietary Assetof the Company Subsidiaries (or that, following the consummation of the Merger, would materially restrict the ability of the Surviving Company, Parent OP or any of their respective Affiliates) to compete in any business or geographic area or with any Person;
(iii) each Ibex any Contract imposing any restriction on Ibex's right or ability (A) pursuant to compete with any other Person, (B) to acquire any product or other asset which the Company or any services from Company Subsidiary is subject to continuing indemnification or “earn-out” obligations (whether related to environmental matters or otherwise), in each case, that would reasonably be likely to result in payments by the Company or any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal Company Subsidiary in any other manner with any other Person, or (C) develop or distribute any technologyexcess of $250,000;
(iv) each Ibex Contract creating any material partnership, limited liability company agreement, joint venture or involving other similar agreement entered into with any agency relationship, distribution arrangement or franchise relationshipthird party;
(v) each Ibex any Contract relating for the pending sale, option to sell, right of first refusal, right of first offer or any other contractual right to sell, dispose of, or master lease, by merger, purchase or sale of assets or stock or otherwise, any real property, including any Company Property or any asset that, if purchased by the acquisitionCompany or any Company Subsidiary, issuance or transfer of any securitieswould be a Company Property;
(vi) each Ibex any Contract relating concerning an interest rate cap, interest rate collar, interest rate swap, or currency hedging transaction to which the creation of Company or any Encumbrance with respect to any asset of IbexCompany Subsidiary is a party;
(vii) each Ibex any Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity that requires the Company or any surety arrangementCompany Subsidiary to dispose of or acquire assets or properties (other than any real property) that (together with all of the assets and properties subject to such requirement in such Contract) have a fair market value in excess of $500,000, or involves any pending or contemplated merger, consolidation or similar business combination transaction;
(viii) each Ibex any Contract creating or relating to indebtedness for borrowed money (whether incurred, assumed, guaranteed or secured by any partnership asset) or joint venture under which the Company or any sharing Company Subsidiary has, directly or indirectly, made any loan, capital contribution to, or other investment in, any Person (other than in the Company or any Company Subsidiary) in excess of revenues, profits, losses, costs or liabilities$1,000,000;
(ix) each Ibex any Contract relating that obligates the Company or any Company Subsidiary to make non-contingent aggregate annual expenditures (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $500,000 and is not cancelable within ninety (90) days without material penalty to the purchase Company or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);Company Subsidiary; or
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside prohibits the ordinary course pledging of business the Company Capital Stock or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term capital stock of more than 60 days and that may not be terminated any Company Subsidiary or prohibits the issuance of guarantees by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material ContractsCompany Subsidiary.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 As of the Disclosure Scheduledate hereof, including all amendments thereto. Part 2.10 each of the Disclosure Schedule provides an accurate description Company Material Contracts is valid, binding and enforceable on the Company or the Company Subsidiaries, as the case may be, and, to the Knowledge of the terms of Company, each Ibex Contract that other party thereto and is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, in each case subject to the best Bankruptcy and Equity Exception, except for such failures to be valid, binding or enforceable or to be in full force and effect as would not be material to the Company and any Company Subsidiary. As of the knowledge date hereof, each of Ibex the Company and the Designated Shareholders, is enforceable by Ibex Company Subsidiaries has complied in accordance all material respects with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency the terms and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 conditions of the Disclosure Schedule:
(i) Ibex has Company Material Contracts and is not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could both) in breach or default thereunder, in each case except as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect. Neither the Company nor any Company Subsidiary has received notice of any violation or default under any Company Material Contract, except for violations or defaults that would not, individually or in the aggregate, reasonably be expected toto have a Company Material Adverse Effect. The Company has delivered or made available to Parent, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant prior to the terms execution of any Ibex Contract to renegotiatethis Agreement, any amount paid or payable to Ibex under any Material Contract or any other material term or provision true and complete copies of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Company Material Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Independence Realty Trust, Inc.), Merger Agreement (Steadfast Apartment REIT, Inc.)
Contracts. (a) Part 2.10 Each of the following is referred to herein as a “Company Material Contract”, whether or not set forth in Section 3.13(a) of the Company Disclosure Schedule identifiesLetter, in effect on the date of this Agreement, or disclosed in the Company SEC Documents: any contract, arrangement, commitment or understanding (whether written or oral) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound (excluding any Oil and Gas Lease), or under which the Company or any of its Subsidiaries has any responsibility or obligation:
(i) each Ibex Contract relating which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed after the date of this Agreement, including any exhibits to the employment of, or the performance of services by, any employee, consultant or independent contractorCompany SEC Documents;
(ii) each Ibex Contract relating which is a natural gas transportation, gathering, treating, processing or other contract, a natural gas liquids fractionation, transportation, purchase, sales or storage contract, a natural gas purchase contract, a salt water disposal agreement or similar contract, that has a remaining term of greater than 12 months and does not allow the Company or such Subsidiary to terminate it without penalty to the acquisitionCompany or such Subsidiary within 60 days and that during the 12 months ended June 30, transfer2020 involved, useor is reasonably expected in the future to involve, development, sharing annual revenues received by or license payments made by the Company and its Subsidiaries in excess of any technology or any Proprietary Asset$500,000;
(iii) each Ibex Contract imposing which contains a “take-or-pay” clause or any similar obligation;
(iv) which involves the pending acquisition or sale of (or option to purchase or sell) any material amount of the assets or properties of the Company or its Subsidiaries (including Oil and Gas Properties), taken as a whole, other than contracts involving the acquisition or sale of (or option to purchase or sell) Hydrocarbons in the ordinary course of business;
(v) which contains any “earn out” or other contingent payment obligations with respect to a prior or pending acquisition or sale of any business, assets or properties, or remaining indemnity or similar obligations under any acquisition or sale agreement, that could reasonably be expected to result in future payments by or to the Company or any of its Subsidiaries in excess of $1.0 million;
(vi) which is an agreement to acquire all or a substantial portion of the Capital Stock, business, property or assets of any other Person for an amount of cash (or value of non-cash consideration), in excess of $1.0 million;
(vii) which is an agreement that provides for the acquisition, disposition, license, use, distribution or outsourcing of assets, services, rights or properties (other than Oil and Gas Properties) with a value or requiring annual fees in excess of $1.0 million;
(viii) which is a material partnership, joint venture or limited liability company agreement, other than customary joint operating agreements, unit agreements or participation agreements affecting the Oil and Gas Properties of the Company or any of its Subsidiaries;
(ix) which is a joint development agreement, exploration agreement, participation, farmout, farmin or program agreement or similar contract requiring the Company or any of its Subsidiaries to make expenditures from and after January 1, 2020 that would reasonably be expected to be in excess of $1.0 million in the aggregate, other than customary joint operating agreements and continuous development obligations under Oil and Gas Leases;
(x) which is a mortgage, note, debenture, indenture, security agreement, guaranty, pledge or other agreement or instrument governing the terms of indebtedness owed by or guaranteed by the Company or any of its Subsidiaries in an amount in excess of $2.0 million;
(xi) which (A) contains a non-compete or similar type of provision that, following the Closing, by virtue of the Merger or of the Buyer becoming affiliated with the Company’s Subsidiaries as a result of the Merger, would by its terms materially restrict the ability of the Buyer or any of its Subsidiaries to compete in any line of business or with any Person or in any geographic area during any period of time after the Effective Time, (B) imposes any material restriction on Ibex's the right or ability (A) of the Company or any of its Subsidiaries to compete with any other Person, (B) to person or acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, dispose of the securities of another person or (C) develop contains an exclusivity or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to “most favored nation” clause that restricts the acquisition, issuance or transfer business of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity Company or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined its Subsidiaries in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practicesmaterial manner;
(xii) which is a material partnership, joint venture or strategic alliance agreement or other similar contract or agreement involving a sharing of profits and expenses other than any other Ibex Contract that has a term customary joint operating agreements, unit agreements or participation agreements affecting the Oil and Gas Properties of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; andCompany;
(xiii) which expressly limits or restricts the ability of the Company or any other Ibex Contract that contemplates of its Subsidiaries to make distributions or involves (A) the payment declare or delivery pay dividends in respect of cash their Capital Stock, partnership interests, membership interests or other consideration equity interests, as the case may be;
(xiv) which is between the Company or any of its Subsidiaries, on the one hand, and any of their respective officers, directors or principals (or any such Person’s affiliates) or any Person that holds or owns five percent (5%) or more of the shares of the Company’s capital stock (or any affiliates of any such Person) on the other hand; or
(xv) which is a charge, order, writ, injunction, judgment, decree, ruling, determination, directive, award, settlement, settlement agreement, consent agreement or similar agreement with any Governmental Entity involving future performance by the Company or any of its Subsidiaries which is material to the Company and its Subsidiaries, taken as a whole. The Company has previously made available to the Buyer true, complete and correct copies of each Company Material Contract, including any amendments thereto, in an amount or having a value in excess effect on the date of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "this Agreement.
(i)" through "(xiii)" above are referred to in this Agreement as ") Each Company Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and binding and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules the Company and each of law governing specific performanceits Subsidiaries has performed all obligations required to be performed by it to date under each Company Material Contract in all material respects, injunctive relief and other equitable remedies.
(ciii) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition existsexists which constitutes or, that (with or without after notice or lapse of time) willtime or both, would constitute, a material default on the part of the Company or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of its Subsidiaries under any Ibex such Company Material Contract, (Biv) give to the knowledge of the Company, no other party to such Company Material Contract is in material default in any Person respect thereunder, except in each case where such failure or default, individually or in the right to declare a default or exercise any remedy under any Ibex Contractaggregate, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not had and would not be reasonably likely to have a Material Adverse Effect on the Company and (v) neither the Company nor any of its Subsidiaries has received any notice or other communication regarding of any actual or possible material violation or breach of, material default under or default underintention to cancel, terminate, modify or not renew, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Company Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Montage Resources Corp), Merger Agreement (Southwestern Energy Co)
Contracts. Except as set forth in Schedule 3.11 hereto, as of the date hereof neither ERC, the LLC nor any Subsidiary is a party to or bound by any of the following (each a "Contract" and collectively the "Contracts") and true, correct and complete copies of which referenced items have previously been delivered to Purchaser:
(a) Part 2.10 of the Disclosure Schedule identifies:
(i) each Ibex Contract relating to the employment of, or the performance of services by, any employee, consultant or independent contractor;
(ii) each Ibex Contract relating to the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services contract for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of services, equipment, inventory, materials, supplies, or any product capital item or items (the cost or expense of which is more than $100,000 in any single instance or which cannot be terminated without penalty on 90 days or less notice), or supply agreements with the federal government or any state or local government or any agency thereof;
(b) any employment, consulting or similar agreements which individually are likely to result in payments by ERC, the LLC or any Subsidiary in excess of $100,000 during any consecutive 12-month period;
(c) any executive severance agreements, non-competition and retainer agreements, executive compensation plans, bonus plans, deferred compensation agreements, employee pension plans or retirement plans, employee stock option or stock purchase plans, employee stock ownership plans and group life, health and accident insurance and other employee benefit or welfare plans, agreements or arrangements;
(d) any loan agreements, indentures, mortgages (other than mortgages securing notes receivable issued to the Company by purchasers of Intervals ("Timeshare Notes Receivable")), notes (other than Timeshare Notes Receivable), capital leases or other asset by instruments relating to the borrowing of money (or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18guarantees thereof);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xie) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash licenses, leases or other consideration in an amount agreements to provide or having a value in excess of $10,000 in the aggregate, acquire services or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, equipment related to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contracttimeshare industry;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 any contracts relating to the sale, hypothecation or factoring of the Disclosure Schedule identifies and provides a brief description accounts receivable, notes receivable or servicing of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.accounts receivable;
(g) Part 2.10 any instruments or agreements relating to indebtedness by way of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.lease-purchase agreements, conditional sale, guarantee or other undertakings on which others rely in extending credit, any joint venture agreements or any chattel mortgages or other security agreements not otherwise disclosed;
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract agreements or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice tocontracts with, or any obligation to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement from an ERC Shareholder or any of the other agreements referred to in its affiliates. For purposes of this Agreement, "Affiliate" shall mean any person or (B) entity that controls or is controlled by or is under common control with, the consummation of the Merger or any of the other transactions contemplated by this Agreement.person involved;
Appears in 2 contracts
Sources: Merger Agreement (Equivest Finance Inc), Merger Agreement (Equivest Finance Inc)
Contracts. (a) Part 2.10 Section 3.9(a) of the Company Disclosure Schedule identifiesidentifies each Contract to which any Acquired Company is a party, or by which it is bound, that constitutes a Material Contract as of the date of this Agreement. For purposes of this Agreement, each of the following to which any Acquired Company is a party or by which it is bound as of the date of this Agreement (other than any Employee Plan) constitutes a “Material Contract”:
(i) each Ibex any Contract relating that is a settlement, conciliation or similar agreement with or approved by any Governmental Body and pursuant to which (A) an Acquired Company will be required after the employment of, date of this Agreement to pay any monetary obligations or the performance of services by, any employee, consultant (B) that contains material obligations or independent contractorlimitations on such Acquired Company’s conduct;
(ii) each Ibex any Contract relating to (A) materially limiting the acquisition, transfer, use, development, sharing freedom or license right of any technology Acquired Company to engage in any line of business or to compete with any Proprietary Assetother Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by any Acquired Company, or (C) containing exclusivity obligations or otherwise materially limiting the freedom or right of any Acquired Company to sell, distribute or manufacture any products or services for any other Person;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business requires by its terms or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) is reasonably expected to require the payment or delivery of cash or other consideration to any Acquired Company in an amount or having a value in excess of $10,000 2,000,000 in the aggregatefiscal year ending December 31, 2017, or (B) the performance of services by any Acquired Company in an amount having a value in excess of $10,000 2,000,000 in the aggregate. fiscal year ending December 31, 2017, and in each case which cannot be cancelled by such Acquired Company without penalty without more than ninety (Contracts 90) days’ notice;
(iv) any Contract relating to (A) the pricing or reimbursement terms for any Key Product, (B) the distribution of any Key Product (for the avoidance of doubt, excluding any Contract solely in respect of courier services), or (C) the purchase from any Acquired Company of any Key Product;
(v) any Contract relating to Indebtedness in excess of $500,000 (whether incurred, assumed, guaranteed or secured by any asset) of any Acquired Company;
(vi) any Contract with any Person constituting a material joint venture, partnership or similar profit sharing arrangement;
(vii) any Contract that by its express terms requires an Acquired Company, or any successor to, or acquirer of, an Acquired Company, to make any payment to another Person as a result of a change of control of such Acquired Company (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(viii) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the capital stock of an Acquired Company, the pledging of the capital stock or other equity interest of an Acquired Company or the issuance of any guaranty by an Acquired Company;
(ix) any In-bound License and any Out-bound License;
(x) any Contract pursuant to which the Company has continuing obligations or interests involving (A) “milestone” or other similar contingent payments, including upon the achievement of regulatory or commercial milestones which would result in a payment in excess of $2,000,000, or (B) payment of royalties or other amounts calculated based upon any revenues or income of the Company, in each case that cannot be terminated by the Company without penalty without more than sixty (60) days’ notice without material payment or penalty;
(xi) each acquisition or divestiture Contract that contains continuing representations, covenants, indemnities or other obligations (including “earn out” or other contingent payment obligations);
(xii) any Contract that relates to any swap, forward, futures, or other similar derivative transaction with a notional value in excess of $500,000;
(xiii) any Contract between the Company and any Governmental Body;
(xiv) any other Contract that is currently in effect and has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act; and
(xv) any Contract (A) with any Affiliate, director, executive officer (as such term is defined in the respective categories described Exchange Act), Person holding 5% or more of the Shares, or, to the knowledge of the Company, any Affiliate (other than the Company) or immediate family member of any of the foregoing or (B) in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contractswhich any of the foregoing Persons has a direct or indirect material financial interest.")
(b) Ibex The Company has either delivered or made available to Castelle Parent an accurate and complete copies copy of all written Contracts identified each Material Contract or has publicly made available such Material Contract in Part 2.10 the Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) database of the Disclosure ScheduleSEC. No Acquired Company nor, including all amendments thereto. Part 2.10 to the knowledge of the Disclosure Schedule provides an accurate description Company as of the terms date of each Ibex this Agreement, any other party is in material breach of, or material default under, any Material Contract and no Acquired Company, or to the knowledge of the Company, any other party to a Material Contract has taken or failed to take any action that is not in written formwith or without notice, lapse of time or both would constitute a material breach of or material default under any Material Contract. Each Material Contract identified in Part 2.10 is, with respect to the Acquired Companies and, to the knowledge of the Disclosure Schedule is Company, each other party thereto, a valid and binding agreement in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, except as such enforcement may be subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application applicability relating to bankruptcy, insolvency and the relief of debtorsor affecting creditors’ rights, and (ii) rules by general equitable principles. Since January 1, 2017 and through the date of law governing specific performancethis Agreement, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has Acquired Companies have not violated or breached, or committed received any default under, written notice regarding any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a material violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex that has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreementsince been cured.
Appears in 2 contracts
Sources: Merger Agreement (Gilead Sciences Inc), Agreement and Plan of Merger (Kite Pharma, Inc.)
Contracts. (a) Part 2.10 Except for (x) this Agreement, (y) Contracts listed on Section 3.16 of the Company Disclosure Schedule identifies:Letter and (z) Contracts filed as exhibits to the Filed Company SEC Documents, as of the date of this Agreement, none of the Company or the Company Subsidiaries is a party to or bound by any of the following Contracts (each such Contract, a “Company Material Contract”):
(i) each Ibex any Contract relating that would be required to be filed by the Company as an exhibit to the employment ofCompany’s Annual Report on Form 10-K pursuant to Item 601(b)(2), (4), (9) or (10) of Regulation S-K under the performance Securities Act of services by1933, any employee, consultant or independent contractoras amended (the “Securities Act”);
(ii) each Ibex any Contract relating to containing covenants binding upon the acquisition, transfer, use, development, sharing Company or license the Company Subsidiaries that materially restrict the ability of any technology the Company or any Proprietary Assetof the Company Subsidiaries (or that, following the consummation of the Merger, would materially restrict the ability of the Surviving Company, the Surviving Partnership or any of their respective Affiliates) to compete in any business or geographic area or with any Person;
(iii) each Ibex any Contract imposing any restriction on Ibex's right or ability (A) pursuant to compete with any other Person, (B) to acquire any product or other asset which the Company or any services from Company Subsidiary is subject to continuing indemnification or “earn-out” obligations (whether related to environmental matters or otherwise), in each case, that would reasonably be likely to result in payments by the Company or any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal Company Subsidiary in any other manner with any other Person, or (C) develop or distribute any technologyexcess of $500,000;
(iv) each Ibex Contract creating any material partnership, limited liability company agreement, joint venture or involving other similar agreement entered into with any agency relationship, distribution arrangement or franchise relationshipthird party;
(v) each Ibex any Contract relating for the pending sale, option to sell, right of first refusal, right of first offer or any other contractual right to sell, dispose of, or master lease, by merger, purchase or sale of assets or stock or otherwise, any real property, including any Company Property or any asset that, if purchased by the acquisitionCompany or any Company Subsidiary, issuance or transfer of any securitieswould be a Company Property;
(vi) each Ibex any Contract relating concerning an interest rate cap, interest rate collar, interest rate swap, or currency hedging transaction to which the creation of Company or any Encumbrance with respect to any asset of IbexCompany Subsidiary is a party;
(vii) each Ibex any Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity that requires the Company or any surety arrangementCompany Subsidiary to dispose of or acquire assets or properties (other than any real property) that (together with all of the assets and properties subject to such requirement in such Contract) have a fair market value in excess of $1,000,000, or involves any pending or contemplated merger, consolidation or similar business combination transaction;
(viii) each Ibex any Contract creating or relating to indebtedness for borrowed money (whether incurred, assumed, guaranteed or secured by any partnership asset) or joint venture under which the Company or any sharing Company Subsidiary has, directly or indirectly, made any loan, capital contribution to, or other investment in, any Person (other than in the Company or any Company Subsidiary) in excess of revenues, profits, losses, costs or liabilities$2,000,000;
(ix) each Ibex any Contract relating that obligates the Company or any Company Subsidiary to make non-contingent aggregate annual expenditures (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $1,000,000 and is not cancelable within ninety (90) days without material penalty to the purchase Company or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);Company Subsidiary; or
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside prohibits the ordinary course pledging of business the capital stock of the Company or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term Company Subsidiary or prohibits the issuance of more than 60 days and that may not be terminated guarantees by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material ContractsCompany Subsidiary.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 As of the Disclosure Scheduledate hereof, including all amendments thereto. Part 2.10 each of the Disclosure Schedule provides an accurate description Company Material Contracts is valid, binding and enforceable on the Company or the Company Subsidiaries, as the case may be, and, to the Knowledge of the terms of Company, each Ibex Contract that other party thereto and is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, in each case subject to the best Bankruptcy and Equity Exception, except for such failures to be valid, binding or enforceable or to be in full force and effect as would not be material to the Company and any Company Subsidiary. As of the knowledge date hereof, each of Ibex the Company and the Designated Shareholders, is enforceable by Ibex Company Subsidiaries has complied in accordance all material respects with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency the terms and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 conditions of the Disclosure Schedule:
(i) Ibex has Company Material Contracts and is not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could both) in breach or default thereunder, in each case except as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect. Neither the Company nor any Company Subsidiary has received notice of any violation or default under any Company Material Contract, except for violations or defaults that would not, individually or in the aggregate, reasonably be expected toto have a Company Material Adverse Effect. The Company has delivered or made available to Parent, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant prior to the terms execution of any Ibex Contract to renegotiatethis Agreement, any amount paid or payable to Ibex under any Material Contract or any other material term or provision true and complete copies of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Company Material Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Independence Realty Trust, Inc), Merger Agreement (Trade Street Residential, Inc.)
Contracts. 3.16.1 Except (aw) Part 2.10 for this Agreement, (x) for the Contracts filed prior to the date of this Agreement as exhibits to the Company SEC Documents, (y) for the Company Plans and (z) as set forth in Schedule 3.16.1 of the Company Disclosure Schedule identifiesLetter, as of the date of this Agreement neither the Company nor any of its Subsidiaries is party to or bound by any Contract that:
(i) each Ibex Contract relating contains covenants that materially restrict the ability of the Company or any of its Subsidiaries to the employment of, (a) engage in any business or the performance of services by, compete in any employee, consultant business with any Person or independent contractor(b) operate in any geographic area (other than franchise agreements);
(ii) each Ibex is an indenture, credit agreement, loan agreement, security agreement, guarantee, bond, mortgage or similar Contract relating pursuant to which any indebtedness of the acquisition, transfer, use, development, sharing or license of any technology Company or any Proprietary Assetof its Subsidiaries, in each case in excess of $2,000,000, is outstanding or secured, other than any such Contract between or among any of the Company and any of its Subsidiaries or guaranties of lease agreements;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) by its terms is reasonably expected to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset result in future payments to or perform any services by the Company in excess of $2,000,000 per annum, except for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technologyContracts that are terminable on less than 90 days’ notice without material penalty;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to is between the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity Company or any surety arrangement;
(viii) each Ibex Contract creating of its Subsidiaries, on the one hand, and any director or relating to any partnership or joint venture officer of the Company or any sharing Person beneficially owning five percent or more of revenuesthe outstanding Company Common Stock, profitson the other hand, lossesexcept for any employment or similar agreements, costs confidentiality agreements, noncompetition agreements in favor of the Company or liabilities;
(ix) each Ibex Contract relating to its Subsidiaries, indemnification agreements with directors and officers of the purchase or sale of any product or other asset by or toCompany, Contracts in connection with Company Plans, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was Contracts entered into outside on arm’s length terms in the ordinary course of business or was inconsistent with Ibex's past practices;and except for material Company Plans; or
(xiiv) would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K of the Securities Act or disclosed by the Company on a Current Report on Form 8-K that has not been filed or incorporated by reference in the Company SEC Documents.
3.16.2 Each Contract of the type described in Section 3.16.1(i) through 3.16.1(v), and any other Ibex Contract that (i) contains “most favored nation” pricing provisions in favor of the Company or any of its subsidiaries with any third party or pursuant to which the Company or any of its subsidiaries is granted exclusive rights, rights of first refusal, rights of first negotiation or offer or similar rights, (ii) has a remaining term of more than 60 days at least 6 months and that may not be terminated by Ibex (without penaltyiii) within 60 days after under which the delivery Company and its Subsidiaries are expected to make payments of at least $2,000,000 over such 6 month period, is referred to herein as a termination notice by ▇▇▇▇; and“Material Contract”. For the purposes of Section 3.16.1, “Contract” shall mean a Contract or group or series of related Contracts.
(xiii) any other Ibex 3.16.3 The Company has made available to Parent a true and complete copy of each Material Contract that contemplates in effect as of the date of this Agreement. Except as would not, individually or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having reasonably be expected to have a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "Material Adverse Effect, (i)" through "(xiii)" above are referred to in this Agreement as ") each Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and binding on the Company and/or any of its Subsidiaries to the extent such Person is a party thereto, as applicable, and to the Knowledge of the Company, each other party thereto, and is in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules the Company and each of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contractits Subsidiaries, and, to the best Knowledge of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default underCompany, any Ibex other party thereto, has performed all obligations required to be performed by it under each Material Contract;
, (iiiii) neither the Company nor any of its Subsidiaries has received, since July 1, 2015, written notice of the existence of any breach or default on the part of the Company or any of its Subsidiaries under any Material Contract that has not since been cured, (iv) to the best Knowledge of the knowledge of Ibex and the Designated ShareholdersCompany, there are no event has occurredevents or conditions which constitute, and no circumstance or condition existsor, that (with or without after notice or lapse of time) willtime or both, or could reasonably be expected towill constitute a default on the part of any counterparty under such Material Contract that has not since been cured, (Av) result to the Knowledge of the Company, no other party to a Material Contract is in a violation or breach of any or default under such Material Contract, and (vi) as of the provisions date of any Ibex Contractthis Agreement and since July 1, (B) give any Person 2015, the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex Company has not received any written notice or other communication regarding in writing from any actual or possible violation or breach ofPerson that such Person intends to terminate, or default undernot renew, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the seek negotiation of terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any “Material Contract”.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Steinhoff International Holdings N.V.), Merger Agreement (Mattress Firm Holding Corp.)
Contracts. Section 4.12 of the Company Disclosure Schedules specifically identifies (by the applicable subsection set forth below in this Section 4.12) each Company Material Contract (other than this Agreement or any Related Agreement). The term "Company Material Contract" shall include each of the following Contracts to which the Company or any Company Subsidiary is a party to or by which the Company or any Company Subsidiary is bound (in each case, other than this Agreement or any Related Agreement):
(a) Part 2.10 any Contract with any Significant Company Customer;
(b) any Contract generating, or that is reasonably likely to generate, more than 5% of revenues for the Company and the Company Subsidiaries over the twelve month period from the date of this Agreement, other than those set forth on Section 4.12(j) of the Company Disclosure Schedule identifies:Schedules;
(c) any Contract with any director, officer, employee or consultant that would require the Company or any Company Subsidiary to make any payments in connection with the Merger, or upon termination of employment, but excluding any Contract (i) each Ibex that is terminable at-will or, in the case of consultants, with 30 or fewer days of notice by the Company or any of the Company Subsidiaries without cost, liability or financial obligations (other than accrued regular compensation and benefits through the date of termination, including any such notice period), or (ii) under which the Company and the Company Subsidiaries collectively have paid or are obligated to pay less than $10,000;
(d) any Contract relating for indemnification (other than standard indemnification provisions in Contracts entered into by the Company or any Company Subsidiary in the Ordinary Course of Business) or any guaranty;
(e) any Contract containing any covenant limiting in any respect the right of the Company or any of the Company Subsidiaries to (i) engage, participate or compete in any line of business, market or geographic area, (ii) develop, market or distribute products or services, (iii) conduct business with any Person, (iv) solicit the employment of, or the performance of services byhire, any employeePerson, consultant or independent contractor(v) compete with any Person; or granting any exclusive sales, distribution, marketing or other exclusive rights, rights of first refusal, "most favored nation" rights, rights of first negotiation or other exclusive rights or similar terms to any Person, but in each case excluding Contracts containing limitations that (A) are not material to the Company or any Company Subsidiary, and (B) do not limit the ability of the Company or any Company Subsidiary to develop or market additional products or services;
(iif) each Ibex any Lease for real or personal property in which the amount of payments that the Company or any of the Company Subsidiaries is required to make on an annual basis exceeds $25,000;
(g) any Contract pursuant to the express terms of which the Company or any of the Company Subsidiaries is currently obligated to pay in excess of $25,000 (or, in the case of a Contract for the purchase of inventory made in the Ordinary Course of Business, $50,000) in any one year period that is not terminable by the Company or the Company Subsidiaries without penalty upon notice of ninety (90) days or less;
(h) any Contract currently in force relating to the acquisition, transfer, use, development, sharing disposition or license of any technology acquisition by the Company or any Proprietary Assetof the Company Subsidiaries after the date hereof of (i) assets with a book value exceeding $25,000 (or, in the case of the sale of inventory made in the Ordinary Course of Business, $50,000) , or (ii) Equity Interests in an Entity;
(iiii) each Ibex any Contract imposing pursuant to which the Company or any restriction on Ibex's right Company Subsidiary is a licensor of Intellectual Property or ability agrees to Encumber, not assert, Transfer or sell rights in or with respect to any Intellectual Property, except for distribution contracts with retail outlets, independent sales agents, other distributors and end users entered into by the Company or any Company Subsidiary in the Ordinary Course of Business;
(Aj) any joint venture Contract or any other Contract that involves a sharing of revenues in excess of $10,000, or involves a sharing of profits, cash flows, expenses or losses, with other Persons, or the payment of royalties to compete with any other Person, (Bother than Contracts identified in Section 4.12(a) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technologyof the applicable Company Disclosure Schedule;
(ivk) each Ibex any Contract creating or involving currently required to be filed as an exhibit pursuant to Item 601(b)(10) of Regulation S-K promulgated under the Securities Act, other than those currently on file with the SEC (including any agency relationship, distribution arrangement or franchise relationshipAmendments to Contracts filed as of the Company Balance Sheet Date that are required to be filed);
(vl) each Ibex any Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance containing a "standstill" provision with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 Equity Interests of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex ContractCompany;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Superior Galleries Inc), Merger Agreement (Dgse Companies Inc)
Contracts. (a) Part 2.10 2.9(a) of the Company Disclosure Schedule identifiesidentifies each Company Contract that constitutes a “Company Material Contract” as of the date hereof. For purposes of this Agreement, each of the following shall constitute a “Company Material Contract”:
(i) each Ibex any Company Contract relating that is a material contract required to be filed as an exhibit pursuant to Item 601(b)(4) or (10) of Regulation S-K under the employment ofExchange Act to any registration statement, proxy statement or other statement, report, schedule, form or other document filed by any Company Entity with the performance of services by, any employee, consultant or independent contractorSEC;
(ii) each Ibex any Contract relating (A) constituting a Company Employee Agreement for a Designated Position, or (B) pursuant to which any of the acquisitionCompany Entities is or may become obligated to grant or accelerate the vesting of, transferor otherwise modify, useany stock option, developmentrestricted stock, sharing restricted stock unit, stock appreciation right or license other equity interest in any of any technology or any Proprietary Assetthe Company Entities;
(iii) each Ibex any Contract imposing contemplating an exclusive or preferential relationship between any Company Entity and any other Person, including any “most favored nation” or “most favored customer” or similar provision in favor of such other Person;
(iv) any Contract that imposes any restriction in any material respect on Ibex's the right or ability of any Company Entity: (A) to compete with any other Person, ; or (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex any Contract (A) incorporating or relating to any guaranty of third party obligations, or (B), other than Contracts entered into in the acquisitionordinary course of business consistent with past practice, issuance imposing any material obligations under any warranty, sharing of liabilities, indemnity or transfer of any securitiessimilar obligation;
(vi) each Ibex any Contract relating to the creation of any Encumbrance with respect to any asset of Ibexcurrency or other hedging;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration (by or to any Company Entity) in an amount or having a value in excess of $10,000 3,000,000 in the aggregate, or (B) contemplates or involves the performance of services (by or for any Company Entity) having a value in excess of $10,000 3,000,000 in the aggregate. ;
(viii) any Contract that: (A) provides for the authorship, invention, creation, conception or other development of any Intellectual Property or Intellectual Property Rights (1) by any Company Entity for any Person or (2) for any Company Entity by any Person (other than with respect to this subsection (A)(2), Company IP Assignment Contracts with employees, consultants or independent contractors of any Company Entity that are on such Company Entity’s standard unmodified forms Made Available to Parent); or (B) provides for the assignment or other transfer of any ownership interest in the respective categories described in clauses "any material Intellectual Property or Intellectual Property Rights (i1) by any Company Entity to any Person or (2) to any Company Entity from any Person (other than with respect to this subsection (B)(2)" through ", Company IP Assignment Contracts with employees, consultants or independent contractors of any Company Entity that are on such Company Entity’s standard unmodified forms Made Available to Parent);
(xiii)" above are referred ix) any joint venture or similar Contract; and
(x) any other Contract, if a breach or termination of such Contract would have, or would reasonably be expected to in this Agreement as "have, a Company Material ContractsAdverse Effect.")
(b) Ibex The Company has delivered Made Available to Castelle Parent an accurate and complete copies copy of all written Contracts identified in Part 2.10 each Company Contract that constitutes a Company Material Contract as of the Disclosure Scheduledate hereof.
(c) Except as, including all amendments thereto. Part 2.10 individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect, each Company Contract that constitutes a Company Material Contract as of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule date hereof is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, ; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(cd) Except as set forth as, individually or in Part 2.10 of the Disclosure Schedule:
aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect: (i) Ibex none of the Company Entities has not violated or breached, or committed any default under, any Ibex Company Contract, and, ; (ii) to the best Knowledge of the knowledge of Ibex and the Designated ShareholdersCompany, no other Person has violated or breached, or committed any default under, any Ibex Company Contract;
(ii) to the best of the knowledge of Ibex ; and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31November 15, 19922017, Ibex none of the Company Entities has not received any notice or other communication communication, written or otherwise, regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Company Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Gulfmark Offshore Inc), Merger Agreement (Tidewater Inc)
Contracts. (a) Part 2.10 Except as filed as an exhibit to a Company SEC Document prior to the date of this Agreement, and except for the Company Benefit Plans, each of the following contracts, agreements or arrangements are set forth in Section 3.18(a) of the Company Disclosure Schedule identifiesLetter:
(i) each Ibex Contract any agreement relating to the employment of, indebtedness (other than agreements among direct or the performance indirect wholly owned Company Subsidiaries) in excess of services by, any employee, consultant or independent contractor$10 million;
(ii) each Ibex Contract any joint venture, partnership, limited liability company or other similar agreements or arrangements relating to the acquisitionformation, transfercreation, useoperation, development, sharing management or license control of any technology partnership, strategic alliance or any Proprietary Assetjoint venture;
(iii) each Ibex Contract imposing any restriction on Ibex's right agreement or ability (A) series of related agreements, including any option agreement, relating to compete with the acquisition or disposition of any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact material business or deal material real property (whether by merger, sale of stock, sale of assets or otherwise) exceeding $15 million individually or $30 million in any other manner with any other Person, or (C) develop or distribute any technologythe aggregate for a series of related agreements;
(iv) each Ibex Contract creating any agreement (including any exclusivity agreement) that purports to limit or involving restrict in any agency relationshipmaterial respect either the type of business in which the Company or any Company Subsidiary (or, distribution arrangement after the Effective Time, the Surviving Corporation or franchise relationshipits Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business in which the Company is currently engaged including any covenant not to compete, or that could require the disposition of any material assets or line of business of the Company or any Company Subsidiary;
(v) each Ibex Contract relating to any agreement providing for the acquisition, issuance production by the Company or transfer any Company Subsidiary of any securitiesproduct on an exclusive or requirements basis or the purchase by the Company or any Company Subsidiary of any product on an exclusive or output basis, in each case not entered into in the ordinary course of business consistent with past practice;
(vi) each Ibex Contract relating to any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the creation of any Encumbrance with respect to any asset of Ibex;SEC).
(vii) each Ibex Contract involving any agreement that involves expenditures or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity receipts of the Company or any surety arrangementCompany Subsidiary in excess of $10 million per year not entered into in the ordinary course of business consistent with past practice;
(viii) each Ibex Contract creating or relating to any partnership or joint venture agreement by which the Company or any sharing Company Subsidiary licenses or otherwise obtains the right to use material Intellectual Property rights of revenuesany other Person (other than licenses for readily available commercial software) or by which the Company or any Company Subsidiary is restricted in its right to use or register, profitsor licenses or otherwise permits any other Person to use, lossesenforce, costs or liabilities;register any material Company Owned Intellectual Property; or
(ix) each Ibex Contract relating any agreement the termination or breach of which would reasonably be expected to result in a Material Adverse Effect on the Company.
(b) The agreements, arrangements and plans that are required to be set forth in Section 3.18(a) of the Company Disclosure Letter, or that would be required to be set forth but for the filing thereof as exhibits to the purchase Company SEC Documents, are referred to herein as the “Company Contracts”. Except with respect to matters that, individually or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, have not resulted in and would not reasonably be expected to result in a material adverse effect on the business or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 operations of the Disclosure ScheduleCompany and its Subsidiaries, including all amendments thereto. Part 2.10 each Company Contract is a valid and binding agreement of the Disclosure Schedule provides an accurate description of Company or a Company Subsidiary, as the terms of each Ibex Contract that case may be, and is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, andand none of the Company, any Company Subsidiary or, to the best knowledge of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default underCompany, any Ibex other party thereto is in default or breach in any material respect under the terms of any such Company Contract; and since January 1, and2009, to neither the best of Company nor any Company Subsidiary, as the knowledge of Ibex case may be, has waived any material right or relinquished any material benefit under any such Company Contract; and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition existswhich, that (after the giving of notice, with or without notice or lapse of time) will, or could reasonably be expected tootherwise, (A) result in would constitute a violation material default by the Company or breach of any Company Subsidiary or, to the knowledge of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default underCompany, any Ibex other party under such Company Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating. True, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies correct and provides a brief description complete copies of each proposed such Company Contract as (including all modifications and amendments thereto and waivers thereunder) have been made available to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996Parent.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Terra Industries Inc)
Contracts. (a) Part 2.10 Schedule 3.13(a) identifies each of the Disclosure Schedule identifies:following Contracts used in connection with the Pipelogic Business to which Pipelogic is a party or by which it or its properties is bound (each such identified Contract, a “Material Contract”):
(i) each Ibex any Contract relating that provides for the payment or potential payment by Pipelogic of more than $50,000 in any consecutive 12-month period or more than $50,000 over the remaining life of such Contract other than a Contract that (A) is terminable by any party thereto giving notice of termination to the employment ofother party thereto not more than sixty (60) days in advance of the proposed termination date and (B) even if so terminable, contains no post-termination obligations, termination penalties, buy-back obligations or the performance of services by, any employee, consultant or independent contractorsimilar obligations;
(ii) each Ibex any Contract that constitutes a purchase order or other Contract relating to the acquisitionsale, transferpurchase, use, development, sharing lease or license provision by Pipelogic of goods or services in excess of $50,000 in any technology or any Proprietary Asset12-month period;
(iii) each Ibex any Contract imposing that grants any restriction on Ibex's Person the exclusive right to sell products or ability provide services within any geographical region other than a Contract that (A) is terminable by any party thereto giving notice of termination to compete with any the other Person, party thereto not more than sixty (60) days in advance of the proposed termination date and (B) to acquire any product even if so terminable, contains no post-termination obligations, termination penalties, buy-back obligations or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technologysimilar obligations;
(iv) each Ibex any Contract creating that purports to limit the freedom of Pipelogic to compete in any line of business or involving with any agency relationship, distribution arrangement Person or franchise relationshipto conduct business in any geographic location;
(v) each Ibex any Contract relating to the acquisition, issuance acquisition or transfer disposition by Pipelogic of the equity or assets of any securitiescompany or any operating business or Interest of another Person (by asset sale, stock sale, merger or otherwise);
(vi) each Ibex any Contract relating to the creation payment of any Encumbrance with respect to any asset Tax or the filing of IbexTax Returns;
(vii) each Ibex any Contract involving that is for the sale of goods or incorporating any guaranty, any pledge, any performance services and has not been substantially completed by Pipelogic as of the date of this Agreement and which (A) was entered into by Pipelogic on terms known at the time the Contract was entered into not to be commercially reasonable or completion bond, any indemnity or any surety arrangement(B) was entered into with the expectation that Pipelogic would incur a loss;
(viii) each Ibex any Contract creating or relating to any partnership or joint venture or any sharing that was entered into outside of revenuesthe Ordinary Course of Business of Pipelogic since December 31, profits, losses, costs or liabilities2017;
(ix) each Ibex any Contract relating to the purchase or sale of any product constituting a partnership, joint venture or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18)similar Contract;
(x) each Ibex any Contract relating to indebtedness for borrowed money, any Contract creating a capital lease obligation, any Contract for the sale or factoring of accounts receivable, any Contract constituting a guarantee of debt of any other Person or relating any Contract requiring Pipelogic to a Government Contract or Government Bidmaintain the financial position of any other Person;
(xi) any Contract under which Pipelogic has made advances or loans to any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practicesPerson;
(xii) any outstanding agreements of guaranty, surety or indemnification (other Ibex Contract that has a term than master services agreements entered into in the Ordinary Course of Business of Pipelogic), direct or indirect, by Pipelogic, in each case where the annual obligations under such agreement are more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and$10,000;
(xiii) any Contract pursuant to which (A) Intellectual Property Rights that are material to the Pipelogic Business or involving consideration in excess of $5,000 is licensed to Pipelogic (other Ibex than license agreement for unmodified “off-the-shelf” software on generally standard terms and conditions involving total consideration of less than $10,000) or (B) Pipelogic has granted a right with respect to Intellectual Property Rights that are material to the Pipelogic Business or involving consideration in excess of $5,000;
(xiv) any Contract that contemplates or involves provides for (A) the payment purchase or delivery sale of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, real property or (B) the performance lease (including any master lease covering multiple items of services having personal property) of any item or items of personal property with a value rental expense under such lease (whether for a single item or multiple items);
(xv) any Contract providing for the deferred payment of any purchase price including any “earn out” or other contingent fee arrangement;
(xvi) any Contract creating a Lien on any of the Pipelogic Assets that will not be discharged at or prior to the Closing;
(xvii) any Contract between Pipelogic, on the one hand, and any Affiliate of Pipelogic, on the other hand (including any Contract providing for (A) compensation, the acceleration of benefits or the loss of any rights in excess connection with the consummation of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in transactions contemplated by this Agreement or (B) the indemnification of such Affiliate by Pipelogic);
(xviii) any Contract with any Seller or any current or former officer, director, member, manager, partner, equityholder, consultant or employee of Pipelogic or any of the foregoing;
(xix) any Contract providing for the employment or engagement of any Person on a full time, part time, consulting or other basis;
(xx) any Contract with any labor union or association or other Person representing or seeking to represent any employee of Pipelogic or any other individual who provides services to Pipelogic;
(xxi) any Contract between Pipelogic and any Governmental Authority;
(xxii) any Contract involving interest rate swaps, cap or collar agreements, commodity or financial future or option contracts or similar derivative or hedging Contracts;
(xxiii) any Contract granting to any Person a right of first refusal, first offer or other right to purchase any of the Pipelogic Assets;
(xxiv) any Contract requiring Pipelogic to make a payment as "Material Contractsa result of the consummation of the transactions contemplated hereby;
(xxv) any Contract containing a “most favored nation” clause or similar provision; and
(xxvi) any Contract with any professional employer organization, personnel staffing organization, employee leasing organization or other entity that provides personnel services or other employment related or employee benefit related services to Pipelogic.")
(b) Ibex has delivered to Castelle accurate True and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, (including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms amendments) of each Ibex Material Contract that is not in written formhave been furnished to Buyer. Each Material Contract identified in Part 2.10 of is the Disclosure Schedule is legal, valid and in full force and effectbinding obligation of Pipelogic, and, to the best Knowledge of Sellers, any other Person party thereto, binding and enforceable against Pipelogic and, to the knowledge Knowledge of Ibex and the Designated ShareholdersSellers, is enforceable by Ibex any other Person party thereto, in accordance with its terms, terms subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtorsCreditors’ Rights. No Material Contract has been terminated, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, andneither Pipelogic nor, to the best Knowledge of the knowledge of Ibex and the Designated ShareholdersSellers, no any other Person has violated is in material breach or breacheddefault thereunder, or committed any default under, any Ibex Contract;
(ii) and to the best Knowledge of the knowledge of Ibex and the Designated Shareholders, Sellers no event has occurred, and no circumstance or condition exists, occurred that (with or without notice or lapse of time) will, or could reasonably be expected toboth, would constitute a material breach or default, or permit termination, modification in any manner adverse to Pipelogic or acceleration thereunder. No party has asserted or has (Aexcept by operation of Legal Requirements) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default offset, discount or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, otherwise ▇▇▇▇▇ any amount paid or payable to Ibex owing under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract except as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as expressly set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has such Material Contract. There are no Material Waivers regarding any Material Contract that have not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required been disclosed in writing to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this AgreementBuyer.
Appears in 2 contracts
Sources: Purchase and Contribution Agreement, Purchase and Contribution Agreement (Sentinel Energy Services Inc.)
Contracts. (a) Part 2.10 Section 2.9(a) of the Company Disclosure Schedule identifies each Contract to which any Acquired Corporation is a party, or by which it is bound, that constitutes a Material Contract as of the date of this Agreement and identifies, with respect to each Material Contract, the clause of this Section 2.9(a) to which it applies. For purposes of this Agreement, each of the following (excluding any Employee Plan) to which any Acquired Corporation is a party or by which it is bound as of the date of this Agreement constitutes a “Material Contract”:
(i) each Ibex any Contract relating that is a settlement, conciliation or similar agreement between any Acquired Corporation and any Governmental Body and pursuant to which (A) an Acquired Corporation will be required after the employment of, date of this Agreement to pay any monetary obligations or the performance of services by, any employee, consultant (B) that contains material obligations or independent contractorlimitations on such Acquired Corporation’s conduct;
(ii) each Ibex any Contract relating to between any Acquired Corporation and any third Person (A) materially limiting the acquisition, transfer, use, development, sharing freedom or license right of any technology Acquired Corporation to engage in any line of business or to compete with any Proprietary Assetother Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by any Acquired Corporation, or (C) containing exclusivity obligations or otherwise materially limiting the freedom or right of any Acquired Corporation to sell, distribute or manufacture any products or services for any other Person;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business requires by its terms or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) is reasonably expected to require the payment or delivery of cash or other consideration (A) to any Acquired Corporation in an amount or having a an expected value in excess of $10,000 250,000 in the aggregatefiscal year ending December 31, 2023 or (B) the performance of services by any Acquired Corporation in an amount having a an expected value in excess of $10,000 1,000,000 in the aggregate. fiscal year ending December 31, 2023, and in each case (Contracts y) which cannot be cancelled by such Acquired Corporation without penalty or further payment without more than ninety (90) days’ notice and (z) excluding commercially available off-the-shelf software licenses and Software-as-a-Service offerings, generally available patent license agreements, material transfer agreements, clinical trial agreements and non-exclusive outbound license agreements (in each case, entered into in the respective categories described ordinary course of business);
(iv) any Contract relating to Indebtedness of any Acquired Corporation in clauses "an aggregate principal amount in excess of $100,000 (iwhether incurred, assumed, guaranteed or secured by any asset)" through ";
(v) any Contract between an Acquired Corporation and a third Person (A) for the disposition of any material assets or business of the Acquired Corporations or (B) for the acquisition of a material portion of the assets or business of any third Person (whether by merger, sale of stock or assets or otherwise), in each case (A) or (B) that contains continuing indemnities or other material obligations or any continuing royalties or other amounts calculated based upon any revenues or income of the Company or any “earn out”, “milestone” or other contingent payment obligations on the part of an Acquired Corporation;
(vi) any Contract between any Acquired Corporation and any third Person constituting a material joint venture, collaboration, partnership or similar profit or revenue sharing arrangement;
(vii) any Contract that by its express terms requires an Acquired Corporation, or any successor to, or acquirer of, an Acquired Corporation, to make any payment to another Person as a result of a change of control of such Acquired Corporation (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(viii) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the capital stock of an Acquired Corporation, the pledging of the capital stock or other equity interests of an Acquired Corporation or the issuance of any guaranty by an Acquired Corporation;
(ix) any (A) In-bound License and (B) Out-bound License;
(x) any Government Contract;
(xi) any Contract that relates to the research, development, distribution, marketing, supply, license, collaboration, co-promotion or manufacturing of the Product Candidates, which if terminated or not renewed, would reasonably be expected to have a material and adverse effect on the Product Candidates;
(xii) any Contract for the lease or sublease of any real property;
(xiii) any Contract that relates to any swap, forward, futures, or other similar derivative transactions;
(xiv) any other Contract that is currently in effect and has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act; and
(xv) any Contract (A) with any Affiliate (other than another Acquired Corporation)" above are referred , director, executive officer (as such term is defined in the Exchange Act), Person holding 5% or more of the Shares, or, to the knowledge of the Company, any Affiliate (other than another Acquired Corporation) or immediate family member of any of the foregoing or (B) in this Agreement as "Material Contractswhich any of the foregoing Persons has a direct or indirect material financial interest.")
(b) Ibex As of the date of this Agreement, the Company has either delivered or made available to Castelle accurate Parent an accurate, unredacted and complete copies copy of all written Contracts identified each Material Contract or has publicly made available such Material Contract in Part 2.10 the Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) database of the Disclosure ScheduleSEC. No Acquired Corporation nor, including all amendments thereto. Part 2.10 to the knowledge of the Disclosure Schedule provides an accurate description Company, any other party thereto is in material breach of, or material default under, any Material Contract and no Acquired Corporation, or to the knowledge of the terms Company, any other party to a Material Contract has taken or failed to take any action that with or without notice, lapse of each Ibex Contract that is not in written formtime or both would constitute a material breach of or material default under any Material Contract. Each Material Contract identified in Part 2.10 is, with respect to the Acquired Corporations and, to the knowledge of the Disclosure Schedule is Company, each other party thereto, a valid and binding agreement in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, except as such enforcement may be subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights, and by general equitable principles. Since the Applicable Date, (i) laws of general application relating to bankruptcy, insolvency and the relief of debtorsAcquired Corporations have not received or delivered any written notice regarding any material violation or breach or default under any Material Contract that has not since been cured, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth no Acquired Corporation has waived in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed writing any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(dc) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 As of the Disclosure Schedule collectively constitute all date of the Agreement, there are no transactions, arrangements or Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 between any of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bidAcquired Corporations, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of on the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bidone hand, and Ibex is not and will not its Affiliates (other than its wholly owned Subsidiaries) or other Persons, on the other hand, that would be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body be disclosed under or in connection with any Government Contract or Government Bid as a result Item 404 of or by virtue of (A) Regulation S-K under the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this AgreementSecurities Act.
Appears in 2 contracts
Sources: Acquisition Agreement, Merger Agreement (IVERIC Bio, Inc.)
Contracts. (a) Part 2.10 Section 5.15(a) of the Parent Disclosure Schedule identifiesLetter lists the following Contracts to which Parent or any of its Subsidiaries is a party:
(i) each Ibex Contract relating each"material contract" (as such term is defined in Item 10.0 and in Instructions As To Exhibits of Form 20-F) to the employment of, which Parent or the performance any of services by, any employee, consultant its Subsidiaries is a party to or independent contractorbound;
(ii) each Ibex Contract relating to not contemplated by this Agreement that limits the acquisition, transfer, use, development, sharing or license ability of any technology Parent or any Proprietary Assetof its Subsidiaries or Affiliates to engage in or compete with any line of business in any location or with any Person in any material manner;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Personthat creates a partnership, (B) to acquire any product or other asset joint venture or any services from strategic alliance with respect to the Company or any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technologyof its Subsidiaries;
(iv) each Ibex employment, consulting, services or similar Contract creating with any employee or independent contractor of Parent or any of its Subsidiaries involving any agency relationship, distribution arrangement or franchise relationshipmore than $250,000 of annual compensation;
(v) each Ibex indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of Indebtedness or Contract relating to the acquisition, issuance or transfer providing for Indebtedness individually in excess of any securities$1,000,000;
(vi) each Ibex Contract relating entered into since January 1, 2016 that relates to the creation acquisition or disposition, directly or indirectly, of any Encumbrance with business (whether by merger, sale of stock, sale of assets or otherwise) or any material assets, including any vessel (other than (A) this Agreement or (B) acquisitions or dispositions of supplies, inventory, merchandise or products (other than vessels) in the ordinary course of business or that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of Parent or its Subsidiaries), including also any such Contract whenever entered into that includes provisions that remain in effect in respect to any asset of Ibexof"earn-outs" or deferred or contingent consideration;
(vii) each Ibex ship-sales, memorandum of agreement, bareboat charter, or other vessel acquisition Contract involving or incorporating any guarantyentered into since January 1, any pledge, any performance or completion bond, any indemnity 2016 for Newbuildings and secondhand vessels contracted for by Parent or any surety arrangementof its Subsidiaries (other than Company Owned Vessels) and other Contracts entered into since January 1, 2016 with respect to Newbuildings of Parent or any of its Subsidiaries and the financing thereof, including performance guarantees, counter guarantees, refund guarantees, supervision agreements and plan verification services agreements;
(viii) each Ibex Contract creating pool agreement, management agreement, crewing agreement or relating financial lease (including sale/leaseback or similar arrangements) with respect to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilitiesParent Vessel;
(ix) each Ibex any Contract relating to with a Third Party for the purchase or sale charter of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18)Parent Vessel;
(x) each Ibex collective bargaining agreement or other Contract constituting with a labor union to which Parent or relating to any of its Subsidiaries is a Government Contract party or Government Bidotherwise bound;
(xi) any other Ibex each Contract that was provides for indemnification by Parent or any of its Subsidiaries to any Person other than a Contract entered into outside in the ordinary course of business or was inconsistent with Ibex's past practicesbusiness;
(xii) each Contract pursuant to which Parent or any other Ibex Contract that has a term of its Subsidiaries spent or received, in the aggregate, more than 60 days and that may not $500,000 during the twelve (12) months prior to the date hereof or could reasonably be terminated by Ibex expected to spend or receive, in the aggregate, more than $500,000 during the twelve (without penalty12) within 60 days months immediately after the delivery date hereof;
(xiii) each Contract to which Parent or any of its Subsidiaries is a termination notice by ▇▇▇▇party or otherwise bound that contains a so-called"most favored nations" provision or similar provisions requiring Parent or its Affiliates to offer to a Person any terms or conditions that are at least as favorable as those offered to one or more other Persons; and
(xiiixiv) each Contract involving a standstill or similar obligation of Parent or any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contractsits Subsidiaries.")
(b) Ibex Parent has delivered heretofore made available to Castelle accurate the Company true and complete copies of all written the Material Contracts identified as in Part 2.10 effect as of the Disclosure Schedule, including all amendments theretodate hereof. Part 2.10 Except as set forth on Section 5.15(b) of the Parent Disclosure Schedule provides an accurate description Letter or as would not reasonably be expected to be material to Parent and its Subsidiaries, taken as a whole, (i) each of the terms of each Ibex Contract that Material Contracts is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid valid, binding, enforceable and in full force and effecteffect with respect to Parent and its Subsidiaries, and, and to the best Knowledge of Parent, the knowledge of Ibex other parties thereto, except to the extent that the enforceability thereof may be limited by the Equitable Exceptions and except for any Material Contracts that have expired or been terminated after the Designated Shareholders, is enforceable by Ibex date hereof in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules neither Parent nor any of law governing specific performanceits Subsidiaries, injunctive relief and nor to the Knowledge of Parent any other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex party to a Material Contract, has not violated or breachedany provision of, or committed taken or failed to take any default underact which, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or notice, lapse of time) will, or could reasonably be expected toboth, (A) result in would constitute a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, or give rise to any Ibex right of cancellation or termination of or consent under, such Material Contract; and
(iv) Ibex has not waived , and neither Parent nor any of its material rights Subsidiaries has received written notice that it has breached, violated or defaulted under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Euronav NV), Agreement and Plan of Merger (Euronav NV)
Contracts. (a) Part 2.10 Other than Contracts that are reasonably expected to expire prior to the Closing without any liability on the part of the Disclosure Company or any Acquired Company, Schedule identifies3.7 constitutes a true, correct and complete list of the following Contracts relating to the Business to which any Acquired Company is a party or by which any of its assets relating to the Business is bound (each Contract so listed or required to be so listed being a “Major Contract”) and each Major Contract is listed under a heading in Schedule 3.7 that corresponds with the applicable clause among the following to which such Major Contract relates:
(i1) each Ibex Contract relating regarding any employment, severance or change-of-control (excluding the Company’s standard forms of offer letter and separation agreement used in the Ordinary Course of Business) (each such contract indicated on Schedule 3.7 as such is an “Executive Employment Agreement”);
(2) each covenant not to compete that restricts in any respect the operation of the Business as presently conducted;
(3) each operating lease (as lessor or lessee) of tangible personal property;
(4) each Contract to pay or receive any royalty or license fee or to license (either as licensor or licensee) any material Intellectual Property (other than any non-exclusive license for the use of any commercially available off-the-shelf software which was entered into in the Ordinary Course of Business of the Acquired Company);
(5) each Contract regarding any management, personal service or consulting or other similar type of Contract involving payments in excess of $100,000 in any calendar year (other than those that are or on the Closing Date will be terminable at will or upon not more than 30 days’ notice by the applicable Acquired Company without any Liability to the employment ofapplicable Acquired Company, except Liability with respect to services rendered before the termination thereof);
(6) each Contract for the purchase by any Acquired Company of any supply or product (except those entered into in the Ordinary Course of Business on an order-by-order basis where the amount thereof is less than $100,000 per Contract);
(7) each mortgage agreement, deed of trust, security agreement, purchase money agreement, conditional sales contract, capital lease or other similar Contract created or assumed by, or the performance of services permitted to be created by written document made or accepted by, any employeeAcquired Company or any sale-leaseback arrangement pertaining to any real property or to equipment (other than any purchase money agreement, consultant conditional sales contract, capital lease or independent contractorother similar Contract evidencing Encumbrances only on tangible personal property under which there exists an aggregate future Liability less than $100,000 per Contract);
(ii8) each Contract under which any Acquired Company is obligated to repay or has guaranteed any outstanding Indebtedness for borrowed money or remains obligated to lend to or make any investment in (in the form of a loan, capital contribution or otherwise) each Ibex Contract relating to the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary Assetother Person;
(iii9) each Ibex Contract imposing under which any restriction on Ibex's right Acquired Company has advanced or ability (A) loaned money to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv10) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer outstanding power of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance attorney with respect to any asset of IbexAcquired Company;
(vii11) each Ibex Contract involving lease or incorporating sublease (whether as lessor or lessee) for the use or occupancy of real property by any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangementAcquired Company;
(viii12) each Ibex Contract creating requiring any Acquired Company to reimburse any maker of a letter of credit or relating to any partnership or banker’s acceptance;
(13) each partnership, joint venture or similar Contract of any sharing of revenues, profits, losses, costs or liabilitiesAcquired Company;
(ix14) each Ibex Contract, other than any Contract relating to the purchase of a nature described in clause (1) or sale (5) above, with any Affiliate of (A) any Acquired Company or (B) any officer, director, governor or manager of (or any person holding a similar position with) any Acquired Company;
(15) each Contract with any distributor or broker of any product or other asset service offered by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18)Acquired Company;
(x16) each Ibex Contract constituting containing any form of most-favored pricing provision in favor of any supplier or relating to a Government Contract or Government Bidcustomer of any Acquired Company;
(xi17) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) is material to any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇Acquired Company; and
(xiii18) any each other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 not entered into in the aggregate, or (B) the performance Ordinary Course of services having a value in excess Business of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contractsany Acquired Company.")
(b) Ibex The Company has delivered made available to Castelle accurate Buyer a true, correct and complete copy of each Major Contract and copies of all written Contracts identified in Part 2.10 the Company’s standard form of the Disclosure Scheduleoffer letter. With respect to each Major Contract, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex (1) such Major Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is legal, valid and binding, in full force and effect, effect and enforceable (except to the extent enforceability may be limited by any Enforcement Limitation) in accordance with its terms against the Applicable Acquired Company and, to the best Knowledge of the knowledge Company, against each other party thereto, (2) the Applicable Acquired Company is not and, to the Knowledge of Ibex the Company, no other party thereto is in material breach of or default under such Major Contract and no party thereto has given to any other party thereto written notice alleging that such a breach or default occurred, (3) to the Designated ShareholdersKnowledge of the Company, no event has occurred that (with or without the passage of time or giving of notice) would constitute a material breach or default of, or permit termination, modification, acceleration or cancellation of, such Major Contract or of any material right or Liability thereunder, (4) the Company has not waived any material right under such Major Contract, (5) no party to such Major Contract has terminated, modified, accelerated or canceled such Major Contract or any material right or Liability thereunder or communicated in writing such party’s desire or intent to do so, (6) the Company has not received any prepayment under such Major Contract for any service that has not been fully performed or good that has not been supplied (other than as is enforceable by Ibex fully reflected in accordance with its terms, subject to (ithe financial records of the Company and will be included within the calculation of the Final Net Book Value Amount) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii7) rules if the parties to such Major Contract are performing under terms that have expired by the express terms of law governing specific performancesuch Major Contract, injunctive relief then Schedule 3.7 identifies such expiration and other equitable remediesdescribes the material terms under which such parties continue to perform.
(c) Except as set forth In the case of each value added reseller agreement and original equipment manufacturer agreement, Schedule 3.7 indicates in Part 2.10 each instance any such Contracts which materially deviate from one of the Disclosure Schedule:
(i) Ibex has Company’s standard value added reseller agreements and standard original equipment manufacturer agreement. Aside from such descriptions on Schedule 3.7, each value added reseller agreement and original equipment manufacturer agreement does not violated or breached, or committed any default under, any Ibex Contract, and, to materially deviate from the best of the knowledge of Ibex Company’s standard value added reseller agreement and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contractstandard original equipment manufacturer agreements.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Imation Corp), Agreement and Plan of Merger (Imation Corp)
Contracts. (a) Part 2.10 3.9(a) of the Company Disclosure Schedule identifiesidentifies each Company Contract that constitutes a Material Contract as of the date of this Agreement. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Material Contract”:
(i) each Ibex any Company Contract relating (other than any Company Contract underlying any Company Stock Awards that is in the Company’s standard form) constituting a Company Employee Agreement pursuant to which the employment Company is or may become obligated to (A) make any severance, termination, or similar payment to any Company Associate or any spouse or heir of any Company Associate except for severance, termination or similar payments required by applicable Legal Requirements that do not exceed $300,000 per beneficiary, (B) make any bonus, deferred compensation or similar payment (other than payments constituting base salary, bonuses or commissions paid in the ordinary course of business consistent with past practice) in excess of $300,000 to any Company Associate or (C) grant or accelerate the vesting of, or the performance of services byotherwise modify, any employee, consultant or independent contractorCompany Stock Award;
(ii) each Ibex any Company Contract relating that is a settlement, conciliation or similar agreement with any Governmental Body and pursuant to which (A) an Acquired Company will be required after the acquisition, transfer, use, development, sharing date of this Agreement to make any payments or license of any technology (B) that contains material obligations or any Proprietary Assetlimitations on such Acquired Company’s conduct;
(iii) each Ibex any Company Contract imposing any restriction on Ibex's right or ability (A) granting any covenant not to ▇▇▇ or otherwise limiting the freedom or right of an Acquired Company, in any material respect, to engage in any line of business, to make use of any material Company IP (or enforce any of its rights thereunder) or to compete with any other Person, Person in any location or line of business or (B) containing any “most favored nations” terms and conditions (including with respect to acquire pricing) granted by an Acquired Company or exclusivity obligations or restrictions or otherwise limiting the freedom or right of an Acquired Company to sell, distribute or manufacture any product products or services or any technology or other asset assets to or any services from for any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex any Company Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) under which aggregate payments in excess of $1,000,000 were made or required to be made by the Acquired Companies during the fiscal year ending December 31, 2016 or (B) that requires by its terms or is reasonably likely to require the payment or delivery of cash or other consideration by or to an Acquired Company in an amount or having a an expected value in excess of $10,000 1,000,000 in the aggregatefiscal year ending December 31, 2017 or in any fiscal year thereafter and cannot be cancelled by the Acquired Companies without penalty or further payment without more than 30 days’ notice;
(v) any Company Contract that contains terms relating to (A) the pricing or reimbursement terms for any Key Product, (B) the marketing or distribution of any Key Product (for the avoidance of doubt, excluding any Contract solely in respect of courier services), or (C) the purchase from any Acquired Company of any Key Product;
(vi) any Company Contract (or series of related Company Contracts) relating to any Indebtedness in excess of $250,000 (whether incurred, assumed, guaranteed or secured by any asset) of the Company or any Acquired Company or subjecting to any Encumbrance (other than Permitted Encumbrances) any right or other asset or property of any Acquired Company;
(vii) any Company Contract constituting a joint venture, partnership, collaboration, limited liability corporation or other similar profit sharing arrangement;
(viii) any Company Contract that requires or permits an Acquired Company, or any successor, to, or acquirer of an Acquired Company, to make any payment to another person as a result of the direct or indirect change of control of such Acquired Company as a result of the Transactions (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(ix) any Company Contract that prohibits the payment of dividends or distributions in respect of the capital stock of the Company or any Acquired Company, the pledging of the capital stock or other equity interests of the Company or any Acquired Company or prohibits the issuance of any guaranty by the Company or any Acquired Company;
(x) any In-bound License and any Out-bound License;
(xi) any Company Contract pursuant to which the Company has continuing obligations or interests involving (A) “milestone” or other similar contingent payments, including upon the achievement of regulatory or commercial milestones which would result in a payment in excess of $500,000, or (B) payment of royalties or other amounts calculated based upon any revenues or income of the performance Company, in each case that cannot be terminated by the Company without more than sixty (60) days’ notice and without payment or penalty;
(xii) any other Company Contract that is currently in effect and has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of services having Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(xiii) any Company Contract with any Affiliate, director, executive officer (as such term is defined in the Exchange Act), holder of 5% or more of Company Common Stock or, to the knowledge of the Company, any of their Affiliates (other than the Company) or immediate family members of any of the foregoing (other than offer letters that can be terminated at will without severance obligations and Company Contracts evidencing Company Stock Awards);
(xiv) any Company Contract for the lease or sublease of any material real property;
(xv) any Company Contract that is a value settlement, conciliation, or other similar agreement relating to any Legal Proceeding or threatened Legal Proceeding in respect of any Key Product;
(xvi) any Company Contract that is a manufacturing or supply agreement for any Key Product, including any sole source supply agreements;
(xvii) any Company Contract that primarily relates to the research, development, distribution, marketing, supply, collaboration, co-promotion or manufacturing of the Company’s product candidates CPP-1X or VTS-270, which, if terminated or not renewed, would reasonably be expected to have a material and adverse effect on the Company’s product candidate CPP-1X or VTS-270, as applicable;
(xviii) any Company Contract since January 1, 2016 that relates to the acquisition or disposition of any material business, a material amount of stock or assets of any Person or any real property (whether by merger, sale of stock, sale of assets or otherwise) but excluding any material transfer agreements, clinical trial agreements and non-exclusive licenses granted in the ordinary course of business consistent with past practice;
(xix) any Company Contract with any Governmental Body under which payments in excess of $10,000 250,000 were received by the Acquired Companies in the aggregate. (Contracts most recently completed fiscal year or under which payments in excess of such amount are reasonably expected to be made in the respective categories described current or any future fiscal year;
(xx) any Company Contract that provides for indemnification or guarantee of the obligations of any other Person that would be material to the Acquired Companies, taken as a whole, other than any such Company Contracts entered into in clauses "the ordinary course of business consistent with past practice; and
(i)" through "(xiii)" above are referred to in this Agreement as "Material Contractsxxi) any hedging, swap, derivative or similar Company Contract other than any Company Stock Award.")
(b) Ibex As of the date of this Agreement, the Company has either delivered or made available to Castelle Parent or Parent’s Representatives an accurate and complete copies copy of all written Contracts identified each Material Contract or has publicly made available such Material Contract in Part 2.10 the Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) database of the Disclosure ScheduleSEC. Neither the applicable Acquired Company nor, including all amendments thereto. Part 2.10 to the knowledge of the Disclosure Schedule provides an accurate description Company, any other party thereto is in material breach of or material default under any Material Contract and neither the applicable Acquired Company nor, to the knowledge of the terms Company, any other party thereto has taken or failed to take any action that with or without notice, lapse of each Ibex Contract that is not in written formtime or both would constitute a material breach of or material default under any Material Contract. Each Material Contract identified in Part 2.10 is, with respect to the applicable Acquired Company and, to the knowledge of the Disclosure Schedule is Company, any other party thereto, a valid agreement, binding and in full force and effect, and, to the best of . To the knowledge of Ibex and the Designated ShareholdersCompany, each Material Contract is enforceable by Ibex the applicable Acquired Company in accordance with its terms, subject to except as such enforceability may be limited by (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, debtors and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 . Since January 1, 2016 through the date of the Disclosure Schedule:
(i) Ibex this Agreement, no Acquired Company has received any written notice regarding any material violation, breach or default under any Material Contract that has not violated or breached, or committed since been cured. No Acquired Company has waived in writing any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, the waiver of which would have, either individually or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conductedaggregate, a Material Adverse Effect.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Sucampo Pharmaceuticals, Inc.), Merger Agreement (Mallinckrodt PLC)
Contracts.
(a) Part 2.10 Section 4.8(a) of the Company Disclosure Schedule identifies:Letter contains an accurate and complete list, as of the date of this Agreement, of all Contracts (other than any Company Benefit Plan) in effect as of the date hereof, of the following types to which the Company or any of its Subsidiaries is a party or bound (the “Company Material Contracts”):
(i) each Ibex any Contract relating that is filed by the Company as a material Contract pursuant to Item 601(b)(10) of Regulation S-K of the employment ofSEC, or the performance other than Contracts described in Item 601(b)(10)(iii) of services by, any employee, consultant or independent contractorRegulation S-K;
(ii) each Ibex any Contract relating that expressly imposes any restriction on the right or ability of the Company and its Subsidiaries, collectively, to compete with any other Person (or in any line of business, market or geographical area), other than any such Contracts that may be cancelled without material liability to the acquisition, transfer, use, development, sharing or license of any technology Company or any Proprietary Assetof its Subsidiaries upon notice of 90 days or less;
(iii) each Ibex any Contract imposing containing any restriction on Ibex's right or ability (A) to compete with any other Person“most favored nation” or similar provisions, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, exclusivity provisions or (C) develop rights of first refusal or distribute first offer, other than any technologysuch Contracts that may be cancelled without material liability to the Company or any of its Subsidiaries upon notice of 90 days or less, (in each case, other than any agreement in which any of the foregoing provisions is solely for the benefit of the Company or any of its Subsidiaries);
(iv) each Ibex any Contract creating that in the year ended December 31, 2022 was (or involving any agency relationshipin the year ending December 31, distribution arrangement 2023 is reasonably expected to be) one of the ten (10) largest sources of revenues for the Company and its Subsidiaries for the applicable year based on amounts paid or franchise relationshippayable;
(v) each Ibex any Contract relating that in the year ended December 31, 2022 was (or in the year ending December 31, 2023 is reasonably expected to be) one of the acquisitionten (10) largest sources of payment obligations for the Company and its Subsidiaries, issuance based on amounts paid or transfer of any securitiespayable;
(vi) any Contract that involves a (A) revenue or profit sharing or similar agreement under which the Company or any of its Subsidiaries has outstanding commitments (other than any Company Benefit Plan) or (B) “minimum purchase” requirement, “take or pay,” “ship or pay” or similar obligations, in each Ibex Contract relating to the creation case with outstanding commitments in an amount in excess of $50,000, in any Encumbrance with respect to any asset of Ibexcalendar year;
(vii) each Ibex any Contract involving relating to indebtedness for borrowed money of (or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity guarantees thereof by) the Company or any surety arrangementof its Subsidiaries (other than any such indebtedness owed by the Company or any wholly owned Subsidiary of the Company to the Company or any wholly owned Subsidiary of the Company, and guarantees thereof);
(viii) any Contract that provides for the acquisition or disposition of any assets (other than acquisitions or dispositions of inventory or the purchase or sale of Hydrocarbons, in each Ibex Contract creating case, in the ordinary course of business consistent with past practice) or relating to business (whether by merger, sale of stock, sale of assets or otherwise) or capital stock or other equity interests of any partnership or joint venture or Person, in each case, with any sharing material outstanding obligations as of revenues, profits, losses, costs or liabilitiesthe date of this Agreement;
(ix) each Ibex Contract relating to the purchase partnership, joint venture or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18)limited liability company agreement;
(x) each Ibex any Contract constituting or relating to a Government Contract or Government Bidany Derivative Transaction;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practicesSealy Ranch Lease;
(xii) any other Ibex each joint development agreement, exploration agreement, participation, farmout, farming or program agreement or similar Contract that has either (A) requires the Company or any of its Subsidiaries to make expenditures from and after January 1, 2023 that would reasonably be expected to be in excess of Fifty Thousand Dollars ($50,000) in the aggregate or (B) is material to the operation of the Company and its Subsidiaries, taken as a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; andwhole;
(xiii) any Contract for the gathering, transportation, processing, treating or sale of Hydrocarbons, other Ibex than any such Contracts that may be cancelled without material liability to the Company or any of its Subsidiaries upon notice of 30 days or less;
(xiv) any Contract that contemplates pursuant to which the Company or involves any of its Subsidiaries has an obligation to make an investment in or loan to any other Person (other than in or to any wholly owned Subsidiary of the Company);
(xv) any Contract with any Governmental Authority, other than Contracts entered into in the ordinary course of business; and
(xvi) any Contract involving the settlement, conciliation or similar agreement of any Litigation or threatened Litigation (A) with any Governmental Authority or (B) pursuant to which the payment Company or delivery any of cash its Subsidiaries are party thereto and that restricts in any material respect the operations or conduct of the Company or any of its Subsidiaries after the date hereof.
(b) Neither the Company nor any Subsidiary of the Company is in breach of or default under any Company Material Contract and, to the Knowledge of the Company, as of the date hereof, no other consideration party to any Company Material Contract is in an amount breach of or having default under any Company Material Contract, and no event has occurred through the Company’s or any of its Subsidiaries’ action, that with notice or the lapse of time or both would constitute a value breach of or default or result in excess the termination of $10,000 or a right of termination or cancelation thereunder, accelerate the performance or obligations required thereby, or result in the loss of any benefit under any Company Material Contract, in each case except as would not reasonably be expected to have, individually or in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregateCompany Material Adverse Effect. (Contracts in the respective categories described in clauses "Each Company Material Contract (i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate is a valid and complete copies of all written Contracts identified in Part 2.10 binding obligation of the Disclosure Schedule, including all amendments thereto. Part 2.10 Company or the Subsidiary of the Disclosure Schedule provides an accurate description Company that is party thereto and, to the Knowledge of the terms Company, of each Ibex Contract that other party thereto, and (ii) is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, subject to the best Enforceability Exceptions, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries has received any written notice of any other party to a Company Material Contract to terminate for default, convenience or otherwise, or not renew, any Company Material Contract, in each case, except as would not reasonably be expected to have, individually or in the knowledge of Ibex and the Designated Shareholdersaggregate, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remediesa Company Material Adverse Effect.
(c) Except The Company has made available to Parent all joint operating agreements in effect as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, anddate hereof, to which the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated Company or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material ContractSubsidiaries is a party or bound (collectively, the “Joint Operating Agreements”).
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Battalion Oil Corp), Merger Agreement (Battalion Oil Corp)
Contracts. Section 3.9 of the Seller Disclosure Letter contains a complete and accurate list of all Contracts to which an Acquired Company, the Satair JV, Seller or any Selling Subsidiary (with respect to Seller and the Selling Subsidiaries, to the extent the Contract is included in the Air Cargo Assets) is a party: (a) Part 2.10 for the future sale of products or services with expected payments in excess of $2,500,000 during the remaining term; (b) for the future purchase of products or services with expected payments in excess of $1,000,000 during the remaining term except for any such Contract that may be canceled on not more than 180 days’ notice without any penalty or other liability to the Business in excess of $100,000; (c) establishing or governing the management of any partnership, joint venture or similar arrangement, or acquisition or disposal of any joint ventures or similar arrangement; (d) that require the Business to deal exclusively with the counterparty or that limit the ability of the Disclosure Schedule identifies:
(i) each Ibex Contract relating to the employment of, or the performance of services by, any employee, consultant or independent contractor;
(ii) each Ibex Contract relating to the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) Business to compete with any other Person, (B) to acquire in any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services geographic market; (e) for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer lease of any securities;
personal property involving annual lease payments in excess of $75,000 per year; (vif) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase of any business or Person (or all or any substantial portion of the assets of any business, business unit, facility or Person) entered into within three (3) years from the date of this Agreement and under which any Acquired Company or the Satair JV has any continuing material liability or obligation; (g) relating to the sale or disposition of any material Business Assets (other than the sale of any product inventory or other asset by obsolete or to, or the performance of any services by or for, any Related Party (as defined worn-out Business Assets replaced in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business consistent with past practice) entered into within three (3) years from the date of this Agreement and under which any Acquired Company or was inconsistent with Ibex's past practices;
the Satair JV has any continuing material liability or obligation; (xiih) relating to any other Ibex Contract that has a term employment, independent contracting, consulting or similar agreement requiring payment by the Business of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates base annual fees or involves (A) the payment or delivery of cash or other consideration in an amount or having a value compensation in excess of $10,000 in 100,000 to any Person; (i) evidencing Indebtedness; and (j) providing for capital expenditures after the aggregate, or (B) the performance date of services having a value this Agreement in excess of $10,000 100,000, individually. The Contracts listed (or required to be listed) in Section 3.9 of the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above Seller Disclosure Letter are referred to in this Agreement collectively herein as "Material the “Significant Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex ” Each Significant Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and is in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex effect in accordance with its terms, the terms of such Significant Contract subject to (i) laws proper authorization and execution of general application relating such Significant Contract by the counterparties thereto and to bankruptcy, insolvency the Bankruptcy and Equity Principles and neither the relief execution of debtorsthis Agreement nor the consummation of the transactions contemplated hereby will give others any rights of termination or cancellation of any Significant Contract. There is no material breach or material default under any Significant Contract, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated ShareholdersSeller’s Knowledge, no event has occurredoccurred that, and no circumstance with the passage of time or condition exists, that (with or without the giving of notice or lapse of time) willboth, would constitute a material breach or could reasonably be expected tomaterial default by Seller, (A) result in a violation or breach of any of an Acquired Company, the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default underSatair JV, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract Selling Subsidiary or any other material term party thereto under, or provision give to others any rights of termination or cancellation of (other than rights relating to contractual expiration), any Material Significant Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Purchase Agreement (Teleflex Inc), Purchase Agreement (Aar Corp)
Contracts. (a) Part 2.10 Section 3.10(a) of the Disclosure Schedule identifies:lists the following Contracts, in effect as of the date of this Agreement, to which any Seller is a party that is Principally Related to the Outlet Business (each Contract so listed and each Real Property Lease is a “Major Contract”):
(i1) each Ibex employment agreement (other than those that are terminable at will by any Seller without any Liability or other obligation to any Seller, except any Liability or other obligation with respect to services rendered before the termination thereof);
(2) each covenant not to compete that restricts the Outlet Business as presently conducted;
(3) each operating lease (as lessor or lessee) of tangible personal property (other than any such lease calling for payments of less than $10,000 per 12-month period);
(4) each Contract relating to pay or receive any royalty or license fee or to license (either as licensor or licensee) any Intellectual Property (other than any (A) license with any Seller or any Affiliate of any Seller, but no other Person, that terminates at the employment ofEffective Time, (B) license for Intellectual Property embedded in any equipment or fixture, (C) non-exclusive implied license of Intellectual Property or (D) non-exclusive license for the use of any commercially available off-the-shelf software);
(5) each Contract regarding any management, personal service or consulting or other similar type of Contract under which there exists aggregate future payments in excess of $10,000 per Contract (other than those (A) that are terminable at will or upon not more than 90 days’ notice by any Seller without any Liability or other obligation to any Seller, except any Liability or other obligation with respect to services rendered before the termination thereof, or (B) entered into in connection with a license);
(6) each Contract for the purchase by any Seller of any supply or product that calls for performance over a period of services more than 12 months (other than those that are terminable at will or upon not more than 90 days’ notice by any Seller without any Liability or other obligation to any Seller, except any Liability or other obligation with respect to any supply or product purchased before the termination thereof);
(7) each mortgage agreement, deed of trust, security agreement, purchase money agreement, conditional sales contract or capital lease created or assumed by, or permitted to be created by written document made or accepted by, any employeeSeller (other than any (A) purchase money agreement, consultant conditional sales contract or independent contractorcapital lease evidencing any Encumbrance only on tangible personal property under which there exists aggregate future payments less than $10,000 per Contract or (B) protective filing of any financing statement under the Uniform Commercial Code);
(ii8) each Contract under which any Seller is obligated to repay or has guaranteed any outstanding indebtedness for borrowed money or remains obligated to lend to or make any investment in (in the form of a loan, capital contribution or otherwise) each Ibex Contract relating to the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, other than any other Seller;
(B9) to acquire each Contract under which any product Seller has advanced or other asset or any services from loaned any other Person, to sell any product or other asset to or perform any services for than any other Seller, outstanding amounts in the aggregate for such Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technologyexceeding $10,000;
(iv10) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer outstanding power of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance attorney with respect to any asset Seller (other than those entered into in its Ordinary Course of IbexBusiness in connection with any Intellectual Property or Tax matter);
(vii11) each Ibex Contract involving with any distributor or incorporating broker of any guaranty, product or service offered by any pledge, any performance or completion bond, any indemnity or any surety arrangementSeller;
(viii12) each Ibex Contract creating for any advertising or relating to any partnership promotional service or joint venture website design or any sharing of revenues, profits, losses, costs or liabilitieshosting;
(ix13) each Ibex Contract relating for the sale of any product or service offered by any Seller that calls for performance over a period of more than six months (other than those that are terminable at will or upon not more than 90 days’ notice by any Seller without any Liability or other obligation to any Seller except any Liability or other obligation with respect to products or services ordered before the termination thereof);
(14) agreements of any Seller for mergers, consolidations or reorganizations or for the purchase or sale of any product material assets (other than in its Ordinary Course of Business) or other asset by all or to, or the performance substantially all of any services by or for, any Related Party (as defined in Section 2.18)a Person’s business and assets;
(x15) each Ibex Contract constituting with finders, brokers or relating to a Government Contract or Government Bid;
underwriters (xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇under which Buyer will have no obligation); and
(xiii16) each other Contract not entered into in the Ordinary Course of Business of the applicable Seller (other than any other Ibex Contract that contemplates calling for payments by or involves (A) the payment or delivery to any Seller of cash or other consideration in an amount or having a value in excess of less than $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(iper 12-month period)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate Exhibit 1.1(a)(1) sets forth a true and complete copies list of all written Contracts identified to which any Seller is a party that is Principally Related to the Outlet Business, other than Excluded Contracts and Contracts that are terminable at will or upon not more than 90 days’ notice by the applicable Seller without any Liability or other obligation of such Seller (other than with respect to actions before the termination thereof) or which involve aggregate future payments of less than $10,000 (and other than any (A) license with any Seller or any Affiliate of any Seller, but no other Person, that terminates at the Effective Time, (B) license for Intellectual Property embedded in Part 2.10 any equipment or fixture, (C) non-exclusive implied license of Intellectual Property (D) non-exclusive license for the Disclosure Scheduleuse of any commercially available off-the-shelf software or (E) order described in Section 1.1(a)(1)(iv)). Sellers have made available to Buyer a true, including all amendments thereto. Part 2.10 correct and complete copy of each such Contract required to be so listed (or, to the Disclosure Schedule provides extent that such an Assumed Contract is oral, an accurate description of summary thereof). With respect to each Major Contract (and with the terms of following assuming that each Ibex Contract Consent has been obtained, which, for any Consent that is not in written form. Each a filing or notice, means the making of such filing or notice), (1) such Major Contract identified in Part 2.10 of the Disclosure Schedule is legal, valid and binding, in full force and effect, and, effect and enforceable (except to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable extent enforceability may be limited by Ibex any Enforceability Limitation) in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and terms against the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, Seller that is a party thereto and, to the best of the knowledge of Ibex and the Designated Shareholderssuch Seller’s Knowledge, against each other party thereto, (2) such Seller is not and, to such Seller’s Knowledge, no other Person has violated party thereto is in material breach of or breacheddefault under such Major Contract, or committed any default under(3) no event, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance occurrence or condition exists, exists or has occurred that (with or without notice the passage of time or lapse giving of timenotice) will, would constitute a material breach or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default underpermit termination, modification, acceleration or cancellation of, such Major Contract or of any Ibex Contract; and
material right, Liability or other obligation thereunder, (iv4) Ibex such Seller has not waived any material right under such Major Contract and (5) no party to such Major Contract has terminated, modified, accelerated or canceled such Major Contract or any material right, Liability or other obligation thereunder or communicated in writing such party’s intent to do so. Seller has not granted any release or waiver in writing or that is otherwise material under or with respect to any of the Major Contracts. Seller has not assigned or otherwise transferred any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Major Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (G Iii Apparel Group LTD /De/), Asset Purchase Agreement (PreVu, INC)
Contracts. (a) Part 2.10 Except for the Financing Agreements, the Contracts disclosed in Section 3.1.18 of the Disclosure Schedule identifiesLetter and the Leases and Real Property Contracts, none of the BRPI Entities is a party to or bound by:
(i) each Ibex 3.1.18.1 any continuing Contract relating pursuant to which it is obligated to make or expects to receive payments of or related to indebtedness for borrowed money of more than $15,000,000 over the employment oflife of the Contract;
3.1.18.2 any Contract that expires or may be renewed at the option of any Person other than any BRPI Entity so as to expire more than one year after the date of this Agreement, having a value, in the case of any such Contract, of more than $15,000,000 over the life of the Contract;
3.1.18.3 any Contract that if terminated or modified or if it ceased to be in effect, would have or could reasonably be expected to have a BRPI Material Adverse Effect;
3.1.18.4 any trust indenture, mortgage, promissory note, loan agreement or other Contract for the performance borrowing of services bymoney, any employeecurrency exchange, consultant interest rate, commodities or independent contractorother hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with IFRS;
(ii) each Ibex 3.1.18.5 other than non-disclosure agreements entered into in the Ordinary Course, any Contract relating to limiting in any material respect the acquisition, transfer, use, development, sharing or license freedom of any technology or BRPI Entity to engage in any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to line of business, compete with any other Person, (B) to acquire solicit any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services Persons for any other Person purpose, operate its Assets at maximum production capacity or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technologyotherwise conduct its business;
(iv) each Ibex 3.1.18.6 any Contract creating or involving any agency relationship, distribution arrangement or franchise relationshipmade out of the Ordinary Course;
(v) each Ibex 3.1.18.7 any confidentiality, secrecy or non-disclosure Contract relating to the acquisitionany proprietary or confidential information, issuance or transfer of any securities;
(vi) in each Ibex Contract relating case to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex extent such Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating and the subject matter therein is material to the purchase ownership, construction, development or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach operation of any of the provisions of Businesses;
3.1.18.8 any Ibex Contract, (B) give Contract with any Person with whom any of the right to declare a default BRPI Entities does not deal at arm’s length within the meaning of the Tax Act (excluding agreements among one or exercise more of the BRPI Entities); or
3.1.18.9 any remedy under any Ibex Contractagreement of guarantee, (C) give any Person the right to accelerate the maturity support, indemnification, assumption or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach endorsement of, or default underany similar commitment with respect to, any Ibex Contract; and
the obligations, liabilities (ivwhether accrued, absolute, contingent or otherwise) Ibex has not waived any or indebtedness of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms more than $15,000,000 of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and Person who is not negotiating any Government Contract or Government Bida BRPI Entity; (collectively, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement“Material Contracts”).
Appears in 2 contracts
Sources: Combination Agreement, Combination Agreement (Brookfield Renewable Energy Partners L.P.)
Contracts. (aPrior to the date hereof, the Company has made available to the Purchaser true and correct copies of, and Schedule 4.01(p) Part 2.10 sets forth a complete and accurate list of all of the Disclosure Schedule identifies:following contracts or commitments which the Company or any of its subsidiaries is a party or is bound (collectively, the "Contracts"):
(i) each Ibex Contract any lease (whether as lessor or lessee) of any interest in any real property and any pending and binding agreement to purchase or sell any real property; (ii) any lease of any personal property with aggregate annual rental payments in excess of $175,000; (iii) any agreement to purchase or sell a capital asset or an interest in any business entity for a price in excess of $175,000 or a right of first refusal with respect thereto; (iv) any agreement relating to the employment of, borrowing or lending of money other than advances to employees to cover business expenses in the performance ordinary course of services by, any employee, consultant or independent contractor;
(ii) each Ibex Contract relating to the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
business; (v) each Ibex Contract relating to the acquisitionany joint venture contract, issuance partnership contract or transfer similar contract evidencing an ownership interest or a participation in or sharing of any securities;
profits; (vi) each Ibex Contract relating to the creation of any Encumbrance with respect to guaranty, contribution agreement or other agreement that includes any asset of Ibex;
material indemnification or contribution obligation; (vii) each Ibex Contract involving or incorporating any guaranty, agreement (including any pledge, any performance or completion bond, any indemnity noncompetition agreement) limiting the ability of the Company or any surety arrangement;
of its subsidiaries to engage in any line of business or in business with any person or restricting the geographical area in which the Company or any of its subsidiaries may engage in any business; (viii) each Ibex Contract creating any employment, consulting, management, severance or relating to any partnership indemnification contract or joint venture or any sharing agreement with annual obligations in excess of revenues, profits, losses, costs or liabilities;
$175,000; (ix) each Ibex Contract relating to material contracts which are terminable or contracts with annual obligations in excess of $175,000 under which payments by the purchase Company or sale any of its subsidiaries may be accelerated upon a change in control of the Company or any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
its subsidiaries; and (x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was agreement which involves the payment of an aggregate annual amount in excess of $175,000 (other than fee for service contracts entered into outside in the ordinary course of business consistent with past practice) or was inconsistent which is material to the Company and its subsidiaries taken as a whole. Except as disclosed in Schedule 4.01(p)(xi), no event has occurred that would, with Ibexthe passage of time or compliance with any applicable notice requirements or both, constitute a default by the Company or any of its subsidiaries or, to the Company's past practices;
(xii) knowledge, by any other Ibex Contract that has a term party under any of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates Contracts except where the default would not, individually or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) reasonably be expected to have a material adverse effect on the performance of services having a value Company. Except as disclosed in excess of $10,000 in Schedule 4.01(p)(xii), to the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred Company's knowledge, no party to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 any of the Disclosure Schedule, including all amendments theretoContracts intends to cancel or terminate any of such Contracts. Part 2.10 All of the Disclosure Schedule provides an accurate description Contracts are valid and binding obligations of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and parties thereto, are in full force and effect, and, to and are enforceable against the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex parties thereto in accordance with its terms, subject to their terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application relating to bankruptcy, insolvency and the relief affecting enforcement of debtors, creditors' rights generally and (ii) rules as limited by laws relating to the availability of law governing specific performance, injunctive relief and relief, or other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Paul Ramsay Holdings Pty LTD), Merger Agreement (Psychiatric Solutions Inc)
Contracts. (a) Part 2.10 Schedule 3.16(a) hereto sets forth a true and correct list of all the following Contracts to which, as of the Disclosure Schedule identifies:date hereof, the Company is a party or to which the Company is bound or subject and under which there are ongoing rights or obligations (other than customary confidentiality obligations with respect to which the Company is in compliance), true and complete copies of which (including, for clarity, any amendments, exhibits, annexes, appendices or attachments thereto) have been provided or made available to the Buyer prior to the Execution Date (each such Contract disclosed or required to be disclosed pursuant to clauses (i) through (xviii) below, and any such Contract entered into prior to the Closing, a “Material Contract”):
(i) each Ibex Contract relating to all Material Network Agreements described in clauses (a) and (c) in the employment of, or the performance of services by, any employee, consultant or independent contractordefinition thereof;
(ii) each Ibex any non-customer Contract relating to the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary Assetwith a Governmental Authority;
(iii) each Ibex any Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Personan employee, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Persondirector, or (C) develop or distribute any technologyofficer of the Company;
(iv) each Ibex (A) any Contract creating with any Person providing services on a full-time or involving consulting basis providing for annual base cash compensation in excess of $125,000 or pursuant to which there have been payments in excess of $125,000 to such Person in the last calendar year, or (B) providing for the payment of any agency relationship, distribution arrangement cash or franchise relationshipother compensation or benefits upon the consummation of the transactions contemplated hereby or that limits the right of the Company to terminate the employment of such Person without notice for any reason and without the payment of severance;
(v) each Ibex any Contract relating to (or group of related Contracts) requiring payments by any party thereto of more than $800,000 in any twelve (12) month period after the acquisitiondate hereof or the performance of which involves expenditures by, issuance or transfer revenue to, the Company in excess of any securities$2,000,000 after the date hereof;
(vi) each Ibex any Contract relating that relates to Indebtedness in excess of $100,000 or any other Contract that grants a Lien (other than a Permitted Lien) upon any material assets of the Company, or any loan agreement, note, mortgage, indenture, security agreement, guaranty or pledge (other than intercompany indebtedness that is discharged in full at or prior to the creation of any Encumbrance with respect to any asset of IbexClosing);
(vii) each Ibex any lease or other Contract involving under which the Company is lessee of or incorporating holds, uses or operates any guarantypersonal property owned by any other party, for which the annual rent exceeds $50,000, excluding any pledge, any performance such lease having a term of one month or completion bond, any indemnity or any surety arrangementless;
(viii) each Ibex any Contract creating or relating to the acquisition or disposition of an equity interest in, or all or substantially all of the assets or business of, any partnership Person or joint venture the disposition of assets or any sharing securities having a book value, in each case, in excess of revenues, profits, losses, costs or liabilities$250,000;
(ix) each Ibex any Contract relating giving rise to amounts that would become payable upon a change of control of the Company or that otherwise include material rights or obligations triggered by the transactions contemplated hereby or by the other Transaction Documents which, if asserted, would result in adverse consequences to the purchase Company, Buyer or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18)its Affiliates;
(x) each Ibex any Contract constituting or relating with the twenty (20) largest customers of the Company, taken as a whole (determined based on signed annual recurring revenues to a Government Contract or Government Bidthe Company as of December 31, 2016);
(xi) any other Ibex Contract that was entered into outside relating to the ordinary course formation, creation, governance or control of business any joint venture, partnership or was inconsistent with Ibex's past practicessimilar Contract;
(xii) any Contract containing provisions that (A) restrict or limit the freedom of the Company to compete with any Person or in any line of business or in any area, including any non-competition, non-solicitation, right of first offer, right of first refusal, or most-favored nation pricing restrictions; (B) provide for the Company to be the exclusive or preferred provider or recipient of any product or service obligations, including, for the avoidance of doubt, any Contract obligating the Company to provide its products or services exclusively to a counterparty or other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex specified Persons; or (without penaltyC) within 60 days after the delivery of a termination notice by ▇▇▇▇; andcontain any minimum purchase or sale obligations (including any take-or-pay Contracts);
(xiii) any other Ibex Affiliate Contract;
(xiv) any Contract that contemplates or involves providing for indemnification by the Company of (A) the payment or delivery of cash or a third party, other consideration than in an amount or having connection with a value in excess of $10,000 commercial agreement in the aggregate, ordinary course of business and consistent with the Company’s past practice or (B) a manager, officer or employee;
(xv) (A) any customer Contract that provides a customer an option to purchase Fiber of the performance Company or (B) any forward sale and purchase agreement;
(xvi) any Contract by which the Company is licensed or otherwise permitted to use the intellectual property of services having a value in excess others (other than non-exclusive licenses for commercial off-the-shelf computer software that are generally available on nondiscriminatory pricing terms), or by which the Company has licensed or authorized others to use any intellectual property;
(xvii) all Contracts (other than customer Contracts) under which the Company is lessor of or permits any third party to hold, use or operate any tangible property (other than real property) owned or controlled by the Company, except for any Contract under which the aggregate annual rental payments do not exceed $10,000 in 100,000 and the aggregate. total aggregate rental payments do not exceed $500,000; and
(Contracts in xviii) any agreement to enter into any Contract of the respective categories type described in clauses "(isubsections (i) through (xvii) of this Section 3.16(a)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate Each Material Contract and complete copies of all written Contracts identified in Part 2.10 Material Network Agreement (i) constitutes a legal, valid and binding obligation of the Disclosure ScheduleCompany, including all amendments (ii) assuming such Material Contract or Material Network Agreement, as applicable, is binding and enforceable against the other parties thereto. Part 2.10 , is enforceable against the Company, (iii) to the knowledge of the Disclosure Schedule provides an accurate description Seller, is enforceable against the other party thereto except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of the terms creditors’ rights generally and by general principles of each Ibex Contract that equity, regardless of whether such enforceability is not considered in written form. Each Contract identified a proceeding at law or in Part 2.10 of the Disclosure Schedule equity and (iv) is valid and in full force and effect, and. Neither the Company nor, to the best knowledge of the Seller, any other party thereto is in material default under any Material Contract and Material Network Agreement, nor has there occurred any event that with notice or lapse of time, or both, (A) would constitute a material default by the Company or, to the knowledge of Ibex and the Designated ShareholdersSeller, any other party thereunder, (B) would allow or give rise to the limitation, revocation, modification, or termination of any Material Contract or Material Network Agreement, or (C) would result in the impairment of the rights of the Company under any Material Contract or Material Network Agreement; nor has the Company or the Seller received any notice regarding the matters described in (A) through (C). There is enforceable by Ibex in accordance no pending disagreement or dispute with its termsany other party to any Material Contract or Material Network Agreement. From December 31, subject 2016 to (i) laws of general application relating the Execution Date, the Company has not received any notification that any party to bankruptcya Material Contract or Material Network Agreement intends to cancel, insolvency and the relief of debtorsterminate, and (ii) rules of law governing specific performancematerially modify, injunctive relief and other equitable remediesrefuse to perform or refuse to renew such Contract.
(c) Except as set forth in Part 2.10 on Schedule 3.16(c) hereto, from and after December 31, 2016 to the Execution Date, none of the Disclosure Schedule:
Top Customers or Top Vendors (collectively, the “Significant Counterparties”) (i) Ibex has not violated ceased its purchases from or breached, sales or committed any default under, any Ibex Contract, and, provision of services to or from the best of Company or threatened in writing or to the knowledge of Ibex and the Designated ShareholdersSeller, no other Person has violated threatened orally to cease such purchases or breachedsales or provision of services, or committed any default under, any Ibex Contract;
(ii) no Significant Counterparty has materially reduced its purchases from or sales or provision of services to or from, or has materially delayed or interrupted purchases from or provision of sales or services to or from, the best Company, as applicable, other than in the ordinary course of business consistent with past practice, (iii) no Significant Counterparty has threatened in writing or to the knowledge of Ibex and the Designated ShareholdersSeller, no event has occurredthreatened orally to cease or materially reduce its purchases from or sales or provision of services to or from the Company, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived there have been no material disputes or controversies with any of its material rights under any Material ContractSignificant Counterparty.
(d) No Person The Company is renegotiating, not in violation or has a right pursuant to breach of the terms of any Ibex Contract Government Contract. All representations, certifications and disclosures made by the Company with respect to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, were accurate and Ibex is not and will not be required complete in all material respects as of their effective date. No reasonable basis exists to make any filing with or give any notice to, or rise to obtain any Consent from, any Governmental Body under or a claim for fraud in connection with any Government Contract including under the United States civil or criminal False Claims Act of 1863 (the “False Claims Act”). The Company has complied in all material respects with the terms and conditions of each Government Bid as Contract and related applicable Laws including all provisions and laws regarding small business subcontracting and utilization, subcontracting plans, affirmative action, protection and security of personal data or data of a result Governmental Authority, kickbacks, illegal gratuities, pricing and other provisions. The Company has not received a cure notice, show cause notice, civil investigative demand or had a Government Contract terminated for default or convenience, have not been threatened with termination for default, or notified of a breach of contract. None of the Company, its respective officers or by virtue employees or, to the knowledge of (A) the executionSeller, delivery their respective agents or Representatives, is or has been suspended or debarred, or to the knowledge of performance the Seller, proposed for suspension or debarment, from doing business with any Governmental Authority, and to the knowledge of this Agreement or the Seller, there are no circumstances that would reasonably be expected to become a basis for any of the foregoing. The Company does not have access to any classified information in connection with any Government Contract and is not required to have any personnel or facility security clearance.
(e) Since December 31, 2016 to the Execution Date, neither the Company nor the Seller has received any written or oral indication of an intention to terminate (including a termination for convenience or for cause) or, in the case of a Material Contract related to an ongoing relationship in the ordinary course of business with the other agreements referred party thereto, fail to in this Agreementrenew or extend on substantially similar terms, any Material Contract (including, for the avoidance of doubt, any purchase, sale or (Bservice order under any Material Contract) the consummation of the Merger or from any of the parties to any Material Contract. Since December 31, 2016 to the Execution Date, with respect to any Material Contract that, by its terms, would automatically renew or extend absent notice or other transactions contemplated action by this Agreementa party thereto, no such party has given any such notice or taken any such action. There is no Action pending against or threatened against the Company or Seller, any present or former officer, director or employee of any of the Companies or Seller, or any Person for whom any the Company may be liable with respect to a Material Contract that is by or before (or that would be by or before) any Governmental Authority or arbitrator.
Appears in 2 contracts
Sources: Membership Interests Purchase Agreement, Membership Interests Purchase Agreement (Uniti Group Inc.)
Contracts. (a) Part 2.10 Section 4.10(a) of the Company Disclosure Schedule identifiesidentifies each Company Contract that constitutes a Material Contract as of the Agreement Date. Each of the following Company Contracts shall be deemed to constitute a “Material Contract” for purposes of this Agreement:
(i) each Ibex Contract relating to the employment of, or the performance of services by, any employee, consultant or independent contractor;
(ii) each Ibex Contract relating to the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Company Contract that was entered into outside the ordinary course of business requires by its terms or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) is reasonably likely to require the payment or delivery of cash or other consideration by or to the Company or any of its Subsidiaries in an amount or having a an expected value in excess of $10,000 350,000 in the aggregatefiscal year ending December 31, 2021 or in any fiscal year thereafter and cannot be cancelled by the Company or any of its Subsidiaries without penalty or further payment without more than ninety (90) days’ notice (other than payments for services rendered to the date), excluding commercially available off-the-shelf software licenses and Software-as-a-Service offerings, generally available patent license agreements entered into in the ordinary course of business and non-exclusive outbound licenses entered into in the ordinary course of business;
(ii) any Company Contract pursuant to which the Company or any of its Subsidiaries has contingent obligations that upon satisfaction of certain conditions precedent will result in the payment by the Company or any of its Subsidiaries of more than $350,000 in the aggregate in the fiscal year ending December 31, 2021 or in any fiscal year thereafter, in either milestone payments or royalties, upon (A) the achievement of regulatory or commercial milestones or (B) the receipt of revenue or income based on product sales;
(iii) any Company Contract (A) limiting the freedom or right of the Company or any of its Subsidiaries, in any material respect, to engage in any line of business, to make use of any material Company IP or to compete with any other Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries or (C) containing exclusivity obligations or restrictions or otherwise materially limiting the freedom or right of the Company or any of its Subsidiaries: (1) to sell, distribute or manufacture any products or services or any technology or other assets to or for any other Person, or (2) to acquire or obtain any products or services from any other Person;
(iv) any Company Contract constituting a joint venture, partnership or similar profit-sharing arrangement;
(v) any Company Contract constituting a Company Employee Agreement pursuant to which the Company or any of its Subsidiaries is or may become obligated to (A) make any severance, termination, or similar payment to any Company Associate or any spouse or heir of any Company Associate except for severance, termination or similar payments that do not exceed $200,000 in cash per beneficiary or that is required by applicable Laws, (B) make any bonus, deferred compensation or similar payment (other than payments constituting base salary, bonuses or commissions paid in the ordinary course of business or in accordance with past performance of services having or a value Company Employee Agreement) in excess of $10,000 200,000 to any Company Associate, or (C) grant or accelerate the vesting of, or otherwise modify, any Company Stock Award other than accelerated vesting provided in the aggregate. Company Equity Plans or any other Company Employee Agreement;
(Contracts vi) any Company Contract with any Affiliate, director, executive officer (as such term is defined in the respective categories described Exchange Act), holder of 5% or more of Shares, or to the Knowledge of the Company, any of their Affiliates (other than the Company and its Subsidiaries) or immediate family members (other than offer letters that can be terminated at will without severance obligations and Company Contracts pursuant to Company Stock Awards);
(vii) any Company Contract, that is currently in clauses "effect and under which there remain material executory obligations, that relates to the acquisition or disposition of any material business, a material amount of stock or assets of any Person or any real property (i)" through "whether by merger, sale of stock, sale of assets or otherwise) but excluding any transfer agreements, services agreements, clinical trial agreements and non-exclusive licenses granted in the ordinary course of business;
(xiii)" above are referred viii) any Company Contract with any Governmental Body, other than any Company Contract, authorization, approval or program under which the Company or any of its Subsidiaries, directly or indirectly, (A) receives refunds, rebates, repayments, reimbursements or similar payments from or (B) makes any payments to, in each case, any Governmental Body in connection with Medicare and any similar federal, state or local governmental programs;
(ix) any Company Contract that is a settlement, conciliation or similar agreement with or approved by any Governmental Body: (A) pursuant to which the Company or any of its Subsidiaries will be required after the Agreement Date to pay any monetary obligations or (B) that contains material obligations or limitations on the Company’s or any of its Subsidiaries’ conduct;
(x) any Company Contract relating to Indebtedness in this Agreement excess of $1,000,000 (whether incurred, assumed, guaranteed or secured by any asset) of the Company or any of its Subsidiaries;
(xi) any hedging, swap, derivative or similar Company Contract; and
(xii) any other Company Contract that is currently in effect and has been filed (or is required to be filed) by the Company as "Material Contractsan exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act.")
(b) Ibex As of the Agreement Date, the Company has either delivered or made available to Castelle Parent or Parent’s Representatives an accurate and complete copies copy of all written Contracts identified each Material Contract or has publicly made available such Material Contract in Part 2.10 the Electronic Data Gathering, Analysis and Retrieval (E▇▇▇▇) database of the Disclosure ScheduleSEC. Neither the Company, including all amendments thereto. Part 2.10 any of its Subsidiaries nor, to the Knowledge of the Disclosure Schedule provides an accurate description Company, the other party is in material breach of or material default under any Material Contract and, neither the Company, any of its Subsidiaries, nor, to the Knowledge of the terms Company, the other party has taken or failed to take any action that with or without notice, lapse of each Ibex Contract that is not in written formtime or both would constitute a material breach of or material default under any Material Contract. Each Material Contract identified in Part 2.10 is, with respect to the Company or any of its Subsidiaries and, to the Knowledge of the Disclosure Schedule is Company, the other party, a valid agreement, binding, and in full force and effect, and, to . To the best Knowledge of the knowledge of Ibex and the Designated ShareholdersCompany, each Material Contract is enforceable by Ibex the Company or its Subsidiaries in accordance with its terms, subject to (i) laws Laws of general application relating to bankruptcy, insolvency and the relief of debtors, debtors and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 . Since January 1, 2020 through the Agreement Date, neither the Company nor any of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed its Subsidiaries have received any default under, written notice regarding any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a or default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex Material Contract that has not received any notice since been cured, except for violations or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived breaches that are immaterial. Neither the Company nor any of its Subsidiaries have waived in writing any material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Contracts. (a) Part 2.10 Section 4.12(a) of the Disclosure Schedule identifies:Letter sets forth a list of the following contracts (other than Plans) to which the Company or any Company Subsidiary is a party, or by which any of their properties or assets are bound, as of the date of this Agreement (“Material Contracts”):
(i) each Ibex Contract relating master contract (excluding work orders, purchase orders, change orders and similar documentation) directly related to the employment of, or the performance Company’s obligations to perform a clinical trial on behalf of services by, a sponsor which is still in effect and which contains ongoing obligations with any employee, consultant or independent contractorMaterial Customer;
(ii) each Ibex Contract relating to the acquisitionany collective bargaining agreement or other contract with any labor union, transfer, use, development, sharing labor organization or license of any technology or any Proprietary Assetworks council;
(iii) each Ibex Contract imposing any restriction on Ibex's right contract entered into within the past thirty six (36) months relating to the acquisition by the Company or ability (A) to compete with any Company Subsidiary of any other material business or Person, (B) to acquire any product whether by merger, consolidation or other asset business combination or any services from any other by the acquisition of the equity securities, or a material portion of the assets of, such business or Person, to sell in each case, that contains material obligations that are still in effect or for consideration in excess of $1,000,000, other than any product or other asset to or perform any services such contract for any other Person or to transact business or deal the purchase of products in any other manner with any other Person, or (C) develop or distribute any technologythe ordinary course of business;
(iv) any contract entered into within the past thirty six (36) months providing for the sale, transfer or other disposition of any equity securities of the Company or any Company Subsidiary or any material assets of the Company or any Company Subsidiary, in each Ibex Contract creating case, that contains material obligations that are still in effect or involving for consideration in excess of $1,000,000, other than any agency relationship, distribution arrangement such contract for the sale of the Company’s or franchise relationshipapplicable Company Subsidiary’s products in the ordinary course of businesses;
(v) each Ibex Contract relating to any contract under which the acquisition, issuance Company or transfer any Company Subsidiary has incurred Indebtedness or any guarantee of any securitiesIndebtedness of any other Person;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract joint venture, product development, research and development or limited partnership agreement involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any a sharing of revenues, profits, losses, costs or liabilitiesliabilities by the Company or any Company Subsidiary with any other Person;
(vii) any contract entered into since January 1, 2019 in the nature of a settlement agreement arising out of any actual or threatened Action asserted by any Person (including, without limitation, any Governmental Entity) providing for aggregate unsatisfied payment obligations in excess of $100,000 or other material non-monetary obligations that have not been satisfied;
(viii) any contract that (A) limits or purports to limit, in any material respect, the ability of the Company or any Company Subsidiary to compete in any line of business currently conducted by the Company or any Company Subsidiary in any geographical area or during any period of time, (B) provides for “most favored nations” terms or (C) establishes an exclusive sale or purchase obligation with respect to any product or service or any geographic location;
(ix) any contract pursuant to which (A) the Company or any Company Subsidiary is granted a license or similar grant of rights to Intellectual Property or (B) the Company or any Company Subsidiary grants to any Person a license or similar rights to Intellectual Property owned by the Company or any Company Subsidiary, in each Ibex Contract relating case that is material to the purchase or sale of any product Company and the Company Subsidiaries, taken as a whole, other than (1) licenses for generally commercially available un-customized software or other asset by technology with aggregate annual license or toother fees of less than $100,000, (2) agreements with customers of the Company or any Company Subsidiary to procure the performance Company’s or any Company Subsidiary’s products and services in the ordinary course of any services by or forbusiness, any Related Party and (as defined in Section 2.18)3) for clarity, nondisclosure agreements, employee invention assignment and confidentiality agreements;
(x) each Ibex any Contract constituting for capital expenditures involving individual or relating to a Government Contract aggregate payments or Government Bidconsideration of more than $150,000 under which there are material outstanding obligations;
(xi) any Contract under which the Company or any Company Subsidiary has material outstanding indemnification obligations to any Person, other Ibex Contract that was than those entered into outside in the ordinary course of business or was inconsistent consistent with Ibex's past practices;practice; and
(xii) each master contract (excluding work orders, purchase orders, change orders and similar documentation) with any Material Supplier, other Ibex Contract than those that has a term of more than 60 days and that may not can be terminated without material penalty by Ibex the Company or such Company Subsidiary upon ninety (without penalty90) within 60 days after the delivery of a termination days’ notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contractsless.")
(b) Ibex has delivered to Castelle accurate and complete copies Copies of all written Material Contracts identified have been furnished or made available to Buyer, except for any such Material Contracts that are deemed by Seller to be competitively sensitive.
(i) Neither the Company nor any Company Subsidiary or, to the Knowledge of Seller, any other party thereto is in Part 2.10 material breach of or material default under any Material Contract and, to the Knowledge of Seller, no event has occurred that, with the passage of time or the giving of notice or both, would constitute such a material breach or material default; (ii) neither the Company nor any Company Subsidiary has received a written notice of material breach or material default or any event that with notice or lapse of time, or both, would constitute a material breach or material default by either the Company or a Company Subsidiary of any Material Contract; and (iii) each of the Disclosure Schedule, including all amendments thereto. Part 2.10 Material Contracts constitutes the valid and binding obligation of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effectCompany or a Company Subsidiary, as applicable, and, to the best Knowledge of Seller, each other party thereto, enforceable against the knowledge Company or a Company Subsidiary, as applicable, and, to the Knowledge of Ibex and the Designated ShareholdersSeller, is enforceable by Ibex each other party thereto in accordance with its terms, subject to (i) laws of general application relating to except as such enforceability may be limited by bankruptcy, insolvency and the relief of debtorsinsolvency, and (ii) rules of law governing specific performancereorganization, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet moratorium or similar document has been submitted or received laws affecting creditors’ right generally and by Ibex since January 1, 1996general equitable principles.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Contracts. (a) Part 2.10 Schedule 3.8(a) lists, as of Signing Date, the following Contracts to which any Acquired Company is a party or by which any of its assets is bound, other than Contracts that are listed as Retained Assets in Schedule 5.2(b)(4) (each a “Major Contract”) and, to the extent that a Major Contract is oral, such Schedule contains an accurate summary of the Disclosure Schedule identifiesmaterial terms thereof:
(i1) each Ibex Contract relating employment agreement (other than (A) any such employment agreement that is or on the Closing Date will be terminable at will by any Acquired Company without any obligation of any Acquired Company, except any obligation with respect to events before the employment oftermination thereof or (B) any agreement with any employee addressing non-disclosure of confidential information, assignment of Intellectual Property, non-solicitation or non-competition entered into in the performance Ordinary Course of services by, any employee, consultant or independent contractorBusiness of an Acquired Company);
(ii2) each Ibex Contract relating covenant not to compete that restricts in any material respect the acquisition, transfer, use, development, sharing or license operation of the business of any technology or any Proprietary AssetAcquired Company;
(iii3) each Ibex operating lease (as lessor or lessee) of tangible personal property (other than any such lease that contemplates aggregate payments of less than $1,000,000 per year);
(4) each Contract imposing to pay or receive any restriction on Ibex's right royalty or ability license fee or to license (either as licensor or licensee) any material Intellectual Property (other than any (A) to compete with license for Intellectual Property embedded in any other Personequipment or fixture, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Personnon-exclusive implied license of Intellectual Property, or (C) develop or distribute non‑exclusive license for the use of any technologycommercially available off‑the‑shelf software);
(iv5) each Ibex Contract creating regarding any management service or involving consulting or other similar type of Contract (other than any agency relationshipsuch Contract that is or on the Closing Date will be terminable at will or upon not more than 90 days’ notice by any Acquired Company without any obligation of any Acquired Company, distribution arrangement or franchise relationshipexcept any obligation with respect to events before the termination thereof);
(v6) each Ibex Contract relating to for the acquisition, issuance or transfer purchase by any Acquired Company of any securitiessupply, manufacturing, distribution, advertising or promotion of products or services (other than any such Contract that (A) is or on the Closing Date will be terminable at will or upon not more than 90 days’ notice by any Acquired Company without any obligation of any Acquired Company, except any obligation with respect to events before the termination thereof, (B) contemplates aggregate payments of less than $1,000,000 per year, or (C) is a purchase order executed in the Ordinary Course of Business of the Acquired Companies);
(vi7) each Ibex mortgage agreement, deed of trust, security agreement, purchase money agreement, conditional sales contract, capital lease or other similar Contract relating created or assumed by, or permitted to the creation be created by written document made or accepted by, any Acquired Company (other than any (A) purchase money agreement, conditional sales contract, capital lease or other similar Contract evidencing any Encumbrance only on tangible personal property, under which there exists under such item aggregate future payments of less than $1,000,000 per year, (B) protective filing of any financing statement under the Uniform Commercial Code or (C) item creating or otherwise providing for any Encumbrance on real property that is shown on a title commitment or title insurance provided to Buyer);
(8) each Contract under which any Acquired Company is obligated to repay or has guaranteed any outstanding Indebtedness or remains obligated to lend to any other Person, other than another Acquired Company;
(9) each Contract under which any Acquired Company has advanced or loaned any other Person any amount that remains outstanding (other than any amount advanced or loaned to (A) another Acquired Company or (B) an employee of an Acquired Company);
(10) each outstanding power of attorney with respect to any asset Acquired Company (other than those entered into in its Ordinary Course of IbexBusiness in connection with any Intellectual Property or Tax matter);
(vii11) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangementReal Property Lease;
(viii12) each Ibex Contract creating or relating to any partnership or partnership, joint venture or any sharing of revenues, profits, losses, costs or liabilitiessimilar Contract;
(ix13) each Ibex Contract, other than any Contract relating to of a nature described in clause (a)(1) or (a)(5) above, with (A) any Seller or Affiliate of a Target Company, other than another Acquired Company, or (B) any officer or director of any Acquired Company;
(14) each Contract for the purchase or sale of any product or service offered by any Acquired Company (other asset by or to, or the performance of than any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex such Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) is or on the payment Closing Date will be terminable at will or delivery upon not more than 90 days’ notice by any Acquired Company without any obligation of cash any Acquired Company, except any obligation with respect to products or other consideration in an amount or having a value in excess of services ordered before the termination thereof, (B) contemplates aggregate payments less than $10,000 in the aggregate1,000,000 per year, or (BC) the performance of services having is a value in excess of $10,000 purchase order executed in the aggregate. Ordinary Course of Business of the Acquired Companies); or
(Contracts 15) each Contract containing any form of most favored pricing provision in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contractsfavor of any customer of any Acquired Company.")
(b) Ibex has delivered The Target Companies have provided to Castelle accurate Buyer a true, correct and complete copies copy of all written Contracts identified in Part 2.10 each Major Contract (or, to the extent that a Major Contract is oral, an accurate summary of the Disclosure Schedulematerial terms thereof). With respect to each Major Contract: (1) such Major Contract is legal, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and binding, in full force and effect, and, effect and enforceable (except to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable extent enforceability may be limited by Ibex any Enforcement Limitation) in accordance with its termsterms against the Acquired Company that is a party thereto or whose assets are bound thereby and, subject to any Acquired Company’s Knowledge, against each other party thereto, (i2) laws such Acquired Company is not and, to any Acquired Company’s Knowledge, no other party thereto is in material breach of general application relating or material default under such Major Contract and no party thereto has given to bankruptcy, insolvency and the relief of debtorsany other party thereto written notice alleging that such a breach or default occurred, and (ii3) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, occurred that (with or without notice the passage of time or lapse giving of timenotice) willwould constitute a material breach or material default of, or could reasonably be expected topermit any early termination, modification, acceleration or cancellation of, such Major Contract. Notwithstanding the foregoing, without limiting any terms or provisions therein, any Contracts entered into on the date hereof in connection with the transactions contemplated hereby among (i) any Acquired Company, (Aii) result in a violation one or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
more Sellers and (iii) since December 31, 1992, Ibex has not received any notice Buyer or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiatingAffiliates, or has a right pursuant to shall be excluded from the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 scope of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies representations and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to warranties contained in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this AgreementSection 3.8.
Appears in 1 contract
Sources: Equity Purchase Agreement (Fortune Brands Home & Security, Inc.)
Contracts. (a) Part 2.10 Schedule 5.13(a) contains a true and correct list as of the Disclosure Schedule identifiesdate of this Agreement of all Contracts of the following types (x) to which any Member is a party or bound by or by which any of its assets is bound or (y) to the extent such Contract constitutes a Business Carve-out Asset, to which Seller or any of its other Subsidiaries are bound:
(i) each Ibex any Contract relating to for the employment of, future purchase or the performance sale of services by, any employee, consultant real property or independent contractorany interest therein;
(ii) each Ibex any Contract relating affecting title to the acquisitionor ownership, transferleasing, use, development, sharing license or license use of any technology or any Proprietary Assetreal property;
(iii) each Ibex any Contract imposing any restriction on Ibex's right for the purchase by the Company Group of services, supplies, components or ability equipment which (A) to compete with any other Personinvolved the payment of more than $32,500 in the year ended December 31, 2013 or (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal requires the mandatory payment of more than $32,500 in any other manner future twelve-month period (in each case excluding any purchase or sale orders entered into in the ordinary course of business consistent with any other Person, or (C) develop or distribute any technologypast practice);
(iv) each Ibex any Contract creating for the sale by the Company Group of any services or involving products of the Business which involved the payment of more than $25,000 in the year ended December 31, 2013 or requires the payment of more than $25,000 in any agency relationship, distribution arrangement or franchise relationshipfuture twelve-month period;
(v) each Ibex Contract relating to the acquisitionany loan agreements, issuance promissory notes, indentures, bonds, security agreements, mortgages, guarantees or transfer of any securitiesobligations for borrowed money or other Contracts involving Indebtedness;
(vi) each Ibex any Contract relating to the creation of under which any Encumbrance with respect Member has outstanding loans to any asset Person, other than trade credit in the ordinary course of Ibexbusiness consistent with past practice;
(vii) each Ibex Contract involving any management agreement, partnership, joint venture, strategic partnership, limited liability company or incorporating any guaranty, any pledge, any performance other similar agreement or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex any Contract creating containing “requirements” provisions or relating other provisions obligating the Company Group to purchase or obtain a minimum or specified amount of any partnership product or joint venture or service from any sharing of revenues, profits, losses, costs or liabilitiesPerson;
(ix) each Ibex any Contract relating to the purchase containing any covenant or sale provision prohibiting any Member from engaging in any line or type of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18)business;
(x) any employment, retention, or non-competition Contract with any current or former (A) director or (B) officer, employee or consultant (in each Ibex case of this clause (B), with annual compensation in excess of $35,000) of any Member or any separation Contract constituting with any former director, officer, employee or relating consultant under which the Company is required to a Government Contract or Government Bidpay an outstanding amount in excess of $25,000;
(xi) any Contract under which any Member would incur any change-in-control payment or similar compensation obligations to any of its directors, officers, employees or consultants as a result of the execution and delivery of this Agreement or any other Ibex Contract that was entered into outside Ancillary Agreements or the ordinary course consummation of business the transactions contemplated hereby or was inconsistent with Ibex's past practicesthereby;
(xii) any other Ibex Contract that has a term purports to restrict in any material respect the ability of more than 60 days and any Member or any of its Subsidiaries to carry on or enter into any market or line of business or any material Contract that may not be terminated by Ibex (without penalty) within 60 days after provides for “most favored nations” terms or establishes exclusive sale or purchase obligations with respect to any product or service anywhere in the delivery of a termination notice by ▇▇▇▇; andworld;
(xiii) any other Ibex stock option, stock purchase, bonus, severance, stock appreciation or similar plan, agreement or arrangement, in each case, to the extent related to any equity interests of the Company Group;
(xiv) any Contract entered into after January 1, 2011, that contemplates relates to the acquisition or involves (A) the payment or delivery disposition of cash any business, any capital stock or other consideration in an amount equity securities from or having a value in excess to any other Person (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any Contract for capital expenditures involving payments of more than $10,000 100,000 individually or in the aggregate, in each case under which there are material outstanding obligations;
(xvi) any Contract involving any resolution or settlement of any actual or threatened Action or release of or compromise with respect to any claims (A) with a value of greater than $50,000 entered into in the past three (3) years or (B) which imposes material continuing obligations on any Member;
(xvii) any Contract under which any Member has continuing “earn-out”, material indemnification or other material contingent payment obligations to any Person;
(xviii) any Contract with any Governmental Body;
(xix) any distribution or franchise Contract;
(xx) any Contract the performance termination of services having which would individually result in a value in excess Material Adverse Effect;
(xxi) any Contract creating a power of $10,000 in the aggregate. attorney granted by or to any Member;
(Contracts in the respective categories described in clauses "xxii) any Contract leasing or licensing any Intellectual Property; and
(i)" through "xxiii) any Contract (xiii)" above are referred A) restricting any pledge, collateral assignment or mortgage or (B) containing exclusive license or exclusive usage right granted to in this Agreement as "Material Contractsor by any Member.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated on Schedule 5.13(a), there is no Contract to which Seller or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its Subsidiaries is a party that is material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material ContractBusiness.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Contracts. (a) Part 2.10 Section 3.10 of the Company Disclosure Schedule identifiesLetter lists each of the following Contracts which the Company or any Subsidiary, as of the date of this Agreement, is a party to or bound by:
(i) each Ibex any Contract relating to outstanding indebtedness (including letters of credit) for borrowed money from third party lending sources pursuant to which the employment of, Company or the performance any Subsidiary has borrowed an amount in excess of services by, any employee, consultant or independent contractor$2,000,000;
(ii) each Ibex with respect to any joint venture, partnership or other similar agreement or arrangement with a third party, any Contract relating that relates to the acquisitionformation, transfercreation, useoperation, developmentmanagement or control of such joint venture, sharing partnership or license of any technology similar agreement or any Proprietary Assetarrangement, in each case other than Investment Assets;
(iii) each Ibex any Contract imposing that involves or would reasonably be expected to involve aggregate payments by or to the Company or any restriction on Ibex's right or ability Subsidiary in excess of $2,000,000 in the most recent twelve-month period, other than (A) to compete with any other Personagreements solely between or among the Company or one or more Subsidiaries, (B) Contracts pursuant to acquire any product or other asset which the Company or any services from any other PersonSubsidiary provides or purchases insurance, to sell any product reinsurance or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or retrocession and (C) develop Contracts that can be terminated by the Company or distribute any technologySubsidiary on less than 90 days’ notice without payment by the Company or any Subsidiary of any material penalty;
(iv) any Contract (A) that would limit the freedom of the Company or any Subsidiary to compete in any line of business or with any person or in any area after the Closing, (B) that contains exclusivity obligations or restrictions that would be binding on the Company or any Subsidiary after the Closing or (C) pursuant to which the Company or any Subsidiary provides “most favored nations” pricing status to any third party, in each Ibex Contract creating case other than Contracts that can be terminated (including such restrictive provisions) by the Company or involving any agency relationship, distribution arrangement Subsidiary on less than 90 days’ notice without payment by the Company or franchise relationshipany Subsidiary of any material penalty;
(v) each Ibex any Contract relating to the acquisitionany material interest rate, issuance derivatives or transfer of any securitieshedging transaction;
(vi) each Ibex any Contract relating to between the creation Company or any Subsidiary, on the one hand, and any Key Employee of the Company or any Encumbrance with respect to any asset of IbexSubsidiary, on the other hand;
(vii) each Ibex any material Contract involving that relates to the investment management function of or incorporating any guaranty, any pledge, any performance the provision of investment management or completion bond, any indemnity or any surety arrangementadvisory services to the business of the Company and the Subsidiaries;
(viii) each Ibex any Contract creating that relates to the acquisition or relating to disposition of any partnership division or joint venture line of business or operations, capital stock or assets or any sharing real estate as to which there are any material ongoing obligations of revenues, profits, losses, costs or liabilitiesthe Company;
(ix) each Ibex any Contract relating under which the Company or any Subsidiary has committed to make any investment (in the purchase form of a loan, capital contribution or sale of otherwise), in any product or other asset by or to, person (other than the Company or the performance of Subsidiaries), other than (A) any services by Investment Asset or for, (B) any Related Party (as defined investment in Section 2.18)an amount less than $2,000,000;
(x) any Contract under which the Company or any Subsidiary has directly or indirectly guaranteed liabilities or obligations of any person, other than the Company or any Subsidiary (and in each Ibex Contract constituting case other than (A) endorsements for the purpose of collection in the ordinary course of business and (B) Contracts pursuant to which the Company or relating to a Government Contract any Subsidiary provides or Government Bid;purchases insurance, reinsurance or retrocession in the ordinary course of business), in any such case which, individually, is in excess of $2,000,000; and
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) prohibits the payment of dividends or delivery distributions in respect of cash the capital stock of the Company or other consideration in an amount any Subsidiary, prohibits the pledging of the capital stock of the Company or having a value in excess any Subsidiary or prohibits the issuance of $10,000 in any guarantee by the aggregate, Company or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contractsany Subsidiary.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 As of the Disclosure Scheduledate of this Agreement, including all amendments thereto. Part 2.10 each Contract required to be listed in Section 3.10 of the Company Disclosure Schedule provides an accurate description Letter (each, a “Listed Contract”) is a valid and binding agreement of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 Company or Subsidiary party thereto and, to the Knowledge of the Disclosure Schedule Company, any other party thereto and is valid and in full force and effect, except for such failures to be valid, binding or in full force and effect that are not material. The Company or the applicable Subsidiary has performed all material obligations required to be performed by it to date under the Listed Contracts, and it is not (with or without the lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder and, to the best Knowledge of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated ShareholdersCompany, no other Person has violated or breached, or committed party to any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that Listed Contract is (with or without notice or the lapse of time) willtime or the giving of notice, or could both) in breach or default in any material respect thereunder, except for such noncompliance, breaches and defaults that, individually or in the aggregate, have not had and would not reasonably be expected toto be material to the Company and the Subsidiaries, (A) result in taken as a violation or breach of any whole. As of the provisions date of any Ibex Contractthis Agreement, (B) give any Person none of Seller, the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person Company and the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex Subsidiaries has not received any notice or other communication regarding any actual or possible violation or breach of termination of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms intention of any Ibex Contract party to renegotiate, terminate any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Listed Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies . Complete and provides a brief description correct copies of each proposed Contract as Listed Contract, together with all written modifications and amendments thereto, have been made available to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996Purchaser.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (White Mountains Insurance Group LTD)
Contracts. (a) Part 2.10 SCHEDULE 5.21 contains a complete and accurate list of all contracts (written or oral), undertakings, commitments or agreements of the Disclosure Schedule identifies:following categories to which any of Parent and its Subsidiaries is a party or by which any of them or their assets is bound (the "PARENT CONTRACTS"):
(i) each Ibex Contract relating to the employment ofParent Contracts requiring annual expenditures by or liabilities of any of Parent and its Subsidiaries in excess of $50,000 that have a remaining term in excess of 30 days or are not cancelable (without material penalty, cost or the performance of services by, any employee, consultant or independent contractorother liability) within 30 days;
(ii) each Ibex Contract promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments relating to the acquisitionlending of money, transferwhether as borrower, uselender or guarantor, development, sharing or license in excess of any technology or any Proprietary Asset;$50,000.
(iii) each Ibex Contract imposing Parent Contracts containing covenants limiting the freedom of any restriction on Ibex's right of Parent and its Subsidiaries to engage in any line of business (other than prohibitions against engaging in business relating to specific product lines) or ability (A) to compete with any other Personperson, (B) to acquire in any product line or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Personline of business, or (C) develop or distribute operate at any technologylocation;
(iv) each Ibex Contract creating joint venture or involving partnership agreements or joint development or similar agreements pursuant to which any agency relationship, distribution arrangement third party has been entitled or franchise relationshipis reasonably expected to be entitled to share in profits or losses of any of Parent and its Subsidiaries;
(v) each Ibex Contract relating to the acquisitionParent Contracts with any federal, issuance state or transfer local government which have a remaining term in excess of any securitiesone year or are not cancelable (without material penalty, cost or other liability) within one year;
(vi) each Ibex Contract other Parent Contracts or commitment in which any of Parent and its Subsidiaries has granted manufacturing rights or exclusive marketing rights relating to the creation any product or service, any group of products or services or any Encumbrance with respect to any asset of Ibex;territory; and
(vii) each Ibex as of the date hereof any other Parent Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of which could be reasonably expected to require expenditures by any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days Parent and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value its Subsidiaries in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts50,000.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 Each of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that Parent Contracts is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is a valid and in full force binding obligation of Parent and effectits Subsidiaries, to the extent a party thereto and, to Parent's knowledge without any investigation, the best of other parties thereto, enforceable against the knowledge of Ibex applicable Parent and the Designated Shareholders, is enforceable by Ibex its Subsidiaries in accordance with its terms, subject to (i) laws of general application relating to except as enforcement may be limited by bankruptcy, insolvency insolvency, moratorium, reorganization, arrangement or similar laws affecting creditors' rights generally and by general principles of equity. Except as set forth on SCHEDULE 5.21, no event has occurred which would, on notice or lapse of time or both, entitle the relief holder of debtorsany indebtedness issued pursuant to a Parent Contract to accelerate, and (ii) rules or that does accelerate, the maturity of law governing specific performance, injunctive relief and other equitable remediesany such indebtedness.
(c) Except as set forth None of Parent and its Subsidiaries is in Part 2.10 of the Disclosure Schedule:
breach, default or violation (i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurredoccurred or not occurred through Parent's or its Subsidiaries' action or inaction or through the action or inaction of any third parties, and no circumstance or condition exists, that (which with or without notice or the lapse of timetime or both would constitute a breach, default or violation) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contractterm, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term condition or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Parent Contract as to which any bid, offer, award, written proposal, term sheet of Parent or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and its Subsidiaries is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as now a result of party or by virtue which any of (A) the execution, delivery of performance of this Agreement them or any of the other agreements referred to in this Agreementtheir respective properties or assets may be bound, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreementexcept for violations set forth on SCHEDULE 5.21.
Appears in 1 contract
Sources: Merger Agreement (Quepasa Com Inc)
Contracts. (a) Part 2.10 Except as set forth on Schedule 3.11(a) and the Leases (collectively, the “Material Contracts”) and except for this Agreement, as of the Disclosure Schedule identifiesdate of this Agreement, no Acquired Company is a party to or bound by any:
(i) each Ibex Contract relating to for the employment ofof any officer, or the performance of services bydirector, any individual employee, consultant or independent contractorother person on a full-time, part-time, consulting or other basis providing annual base salary or consulting fees in excess of $75,000 (other than any “at will” Contract that may be terminated by any Acquired Company upon 30 days’ or less advance notice without any obligation to provide severance payments or benefits);
(ii) each Ibex Contract relating to the acquisitionthat provides for any deferred compensation, transferretention, useseverance, development, sharing or license of any technology change in control payment or any Proprietary Assetbenefits;
(iii) each Ibex Contract imposing under which any restriction on Ibex's right Acquired Company has made advances or ability (A) loans to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating (A) restricting any Acquired Company from participating or involving competing in any agency relationshipline of business, distribution arrangement market or franchise relationshipgeographic area, (B) including any most favored nation or similar customer pricing provisions or (C) granting any exclusive rights, rights of first refusal, rights of first negotiation or similar rights to any party;
(v) each Ibex agreement, indenture, mortgage, trust deed, promissory note, loan agreement, security agreement, guarantee or other Contract relating for or with respect to the acquisition, issuance or transfer of any securitiesIndebtedness;
(vi) each Ibex Contract relating to lease or agreement under which any Acquired Company is lessee of or holds or operates any tangible personal property, owned by any other Person, except for any lease or agreement under which the creation of any Encumbrance with respect to any asset of Ibexaggregate annual rental payments do not exceed $100,000;
(vii) each Ibex Contract involving lease or incorporating agreement under which any guarantyAcquired Company is lessor of or permits any third party to hold or operate any tangible personal property, owned or controlled by an Acquired Company, except for any pledge, any performance lease or completion bond, any indemnity or any surety arrangementagreement under which the aggregate annual rental payments do not exceed $100,000;
(viii) each Ibex Contract creating or relating to any that involves a joint venture, partnership or joint venture or any other sharing of revenues, profits, lossescash flows, costs expenses or liabilitieslosses with any other party or a payment of royalties to any other party;
(ix) each Ibex Contract relating to with any Significant Customer (excluding any purchase orders entered into in the purchase or sale Ordinary Course of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18Business);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bidwith any Significant Supplier (excluding any purchase orders entered into in the Ordinary Course of Business);
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practicescollective bargaining agreement;
(xii) any other Ibex Contract that has a term relates to any future disposition or acquisition of more than 60 days and that may not be terminated material assets or properties by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; andany Acquired Company, or any merger or business combination with respect to any Acquired Company;
(xiii) any other Ibex Contract that contemplates relates to any completed disposition or involves acquisition of material assets or properties by any Acquired Company, or any merger or business combination with respect to any Acquired Company, in each case, including any surviving obligations or rights of the applicable Acquired Company;
(xiv) dealer, distributor, original equipment manufacturer, value added reseller, sales representative or similar Contract under which any third party is authorized to sell, sublicense, lease, distribute, market or take orders for any of an Acquired Company’s products;
(xv) license agreement or other Contract (A) pursuant to which any Acquired Company has the payment right to practice, use, copy or delivery of cash otherwise exploit any Intellectual Property Rights owned by any other Person, except for any license agreement or other consideration Contract (I) for off-the-shelf or other publicly available software or other technology involving payments that do not exceed $50,000 per year unless incorporated into or used in an amount connection with any product or having a value service of any Acquired Company or (II) provided in excess connection with any equipment purchased or used by any Acquired Company unless incorporated into or used in connection with any product or service of $10,000 in the aggregateany Acquired Company, or (B) pursuant to which any Acquired Company has assigned, transferred, licensed, sublicensed, distributed or otherwise granted any right or access to any Person, or covenanted not to assert any right, with respect to any past, existing, or future Company IP Rights, except for any license agreement or other Contract (I) pertaining only to standard terms governing any other Person’s access to, and use of, an Acquired Company’s website or (II) with a customer of any Acquired Company entered into the performance Ordinary Course of services having Business enabling the customer to use any product or service of any Acquired Company, (C) that materially affects the ability of any Acquired Company to use, enforce, disclose, dispose of or otherwise exploit any rights in any Company IP Rights, and (D) that otherwise involves the granting of any rights to a value in excess of $10,000 third party to any material Company IP Rights other than in the aggregate. Ordinary Course of Business, including development agreements, coexistence agreements and agreements containing covenants not to ▇▇▇;
(Contracts in xvi) Contract providing for indemnification of any officer, director or manager of an Acquired Company;
(xvii) Contract of guarantee, assumption or endorsement of the respective categories described in clauses "obligations, Liabilities or debts of any other Person;
(ixviii) power of attorney or agency agreement or arrangement with any Person pursuant to which such Person is granted the authority to act for or on behalf of an Acquired Company or an Acquired Company is granted the authority to act for or on behalf of such Person;
(xix) Contract that binds or purports to bind any Affiliates of any Acquired Company or that would bind or purport to bind, after the Closing, Buyer or any of its Affiliates (other than the Surviving Corporation)" through ";
(xiii)" above are referred xx) Contract with any Governmental Entity; or
(xxi) other Contract material to in this Agreement as "Material Contractsany Acquired Company.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure ScheduleExcept as set forth on Schedule 3.11(b), including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Material Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effecteffect and is a valid, legal and binding agreement of the applicable Acquired Company and (assuming that such Material Contract was duly and validly authorized, executed and delivered by the other Persons party thereto) enforceable against the applicable Acquired Company and, to the best Knowledge of the knowledge of Ibex and the Designated ShareholdersAcquired Companies, is enforceable by Ibex each other party thereto, in accordance with its terms, except (i) to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting the enforcement of creditors’ rights generally and (ii) that the availability of equitable remedies, including specific performance, is subject to the discretion of the court before which any proceeding thereof may be brought. The applicable Acquired Company and, to the Knowledge of the Acquired Companies, each other party thereto, has performed all of the material obligations required to be performed by it and is entitled to all material benefits under each Material Contract. There exists no material default or event of default or event, occurrence, condition or act which with the giving of notice or the lapse of time would reasonably be expected to (i) laws become a material default or event of general application relating to bankruptcydefault under any Material Contract, insolvency and the relief of debtors, and or (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed give any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, third party (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Material Contract, (B) the right to a rebate, chargeback, refund, credit, penalty or change in performance schedule under any Material Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex obligation of an Acquired Company under any Material Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Material Contract;
(iii) since December 31. As of the date hereof, 1992, Ibex no Acquired Company has not received any written, or to the Knowledge of the Acquired Companies, other notice or other communication regarding any actual or possible alleged violation or breach of, of or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under or intention to cancel or modify, any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Contracts. (a) Part 2.10 Except with respect to Contracts solely among the Company and any wholly owned Company Subsidiary or Company Subsidiaries, or solely among any wholly owned Company Subsidiaries, Section 4.17(a) of the Company Disclosure Schedule identifiesLetter sets forth, as of the date of this Agreement, a true and complete list of:
(i) each Ibex Contract relating to "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K under the employment of, or the performance of services by, any employee, consultant or independent contractorSecurities Act);
(ii) each Ibex non-competition Contract relating or similar Contract containing terms that expressly limit or otherwise restrict the ability of the Company or any Company Subsidiary to compete in any line of business or in any geographic area, in a manner that would be reasonably likely to be material to the acquisitionCompany and the Company Subsidiaries, transfer, use, development, sharing or license of any technology or any Proprietary Assettaken as a whole;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product loan and credit agreement or other asset Contract pursuant to which any Indebtedness for borrowed money in excess of $5,000,000 of the Company or any services from any other Person, to sell any product Company Subsidiary is outstanding or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technologymay be incurred;
(iv) each Ibex Contract creating partnership, joint venture or involving similar agreement to which the Company or any agency relationshipCompany Subsidiary is a party relating to the formation, distribution arrangement creation, operation, management or franchise relationshipcontrol of any partnership or joint venture, in each case material to the Company and the Company Subsidiaries, taken as a whole, other than any customary joint operating agreements, unit agreements or participation agreements affecting the Oil and Gas Properties of the Company or any Company Subsidiary;
(v) each Ibex Contract relating joint development agreement, exploration agreement, participation, farmout, farmin or program agreement or similar contract requiring the Company or any of its Subsidiaries to make expenditures that would reasonably be expected to be in excess of $5,000,000 in the acquisitionaggregate during the 12-month period following the date of this Agreement, issuance or transfer of any securitiesother than customary joint operating agreements and continuous development obligations under Oil and Gas Leases;
(vi) each Ibex Contract relating to the creation of for any Encumbrance with respect to any asset of Ibexmaterial Derivative Transaction;
(vii) each Ibex any Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity that provides for the sale by the Company or any surety arrangementof the Company Subsidiaries of Hydrocarbons that (A) has a remaining term of greater than 60 days and does not allow the Company or such Company Subsidiary to terminate it without penalty on 60 days' notice, or (B) contains a "take-or-pay" clause or any similar material prepayment or forward sale arrangement or obligation (excluding "gas balancing" arrangements associated with customary joint operating agreements) to deliver Hydrocarbons at some future time without then or thereafter receiving full payment therefor;
(viii) other than in the ordinary course, each Ibex Contract creating or relating to any partnership or joint venture which the Company or any sharing Company Subsidiary is a party involving the future disposition or acquisition of revenues, profits, losses, costs assets or liabilitiesproperties with a fair market value in excess of $5,000,000;
(ix) each Ibex Contract relating that is a transportation or processing agreement to which the purchase Company or sale any Company Subsidiary is a party involving the transportation or processing of any product or other asset by or tomore than 50 MMcf of gaseous Hydrocarbons per day, or the performance 5,000 barrels of any services by or for, any Related Party (as defined in Section 2.18)liquid Hydrocarbons per day;
(x) each Ibex Contract constituting to which the Company or relating to any Company Subsidiary is a Government Contract party for the purchase, sale or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course option of business minerals or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or mineral rights having a value in excess of $10,000 5,000,000;
(xi) each Contract with any supplier or vendor under which the Company or any Company Subsidiary is obligated to purchase goods or services (other than transportation or processing services) involving consideration in excess of $5,000,000 (except with respect to the purchase of items of inventory in the ordinary course of business consistent with past practice) or that is not terminable without penalty upon notice of 90 days or less;
(xii) each Collective Bargaining Agreement to which the Company or any of its Subsidiaries is a party or is subject;
(xiii) each Contract involving the pending acquisition or sale of (or option to purchase or sell) assets or properties of the Company or its Subsidiaries, taken as a whole, having a purchase price in excess of $5,000,000, other than contracts involving the acquisition or sale of (or option to purchase or sell) Hydrocarbons in the ordinary course of business;
(xiv) each Contract for lease of personal property or real property (other than Oil and Gas Properties) involving aggregate payments in excess of $15,000,000 in any calendar year that are not terminable without penalty within 60 days, other than contracts related to drilling rigs;
(xv) each Contract under which the Company or any of its Subsidiaries has advanced or loaned any amount of money to any of the following: (x) an executive officer or director of the Company or any Subsidiary of the Company; (y) a beneficial owner (within the meaning of Section 13(d) of the Exchange Act) of 5% or more of the Company Common Shares; or (z) an Affiliate, "associate" or member of the "immediate family" (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the Exchange Act) of any of the Persons described in the foregoing clauses (x) or (y);
(xvi) each Contract that contains any "most favored nation" or most favored customer provision, call or put option, preferential right or right of first or last offer, negotiation or refusal, in each case other than those contained in (A) any agreement in which such provision is solely for the benefit of the Company or any of the Company Subsidiaries, (B) customary royalty pricing provisions in Oil and Gas Leases or (C) customary preferential rights in joint operating agreements, unit agreements or participation agreements affecting the business or the Oil and Gas Properties of the Company or any of the Company Subsidiaries, to which the Company or any of the Company Subsidiaries or any of their respective Affiliates is subject, and is material to the business of the Company and its Subsidiaries, taken as a whole; and
(xvii) each Contract relating to a Company Related Party Transaction. Each Contract of the type described in this Section 4.17(a) is referred to herein as a "Company Material Contract."
(b) A complete and correct copy of each of the Company Material Contracts existing as of the date of this Agreement has been made available to Parent prior to the date hereof. Except for matters which, individually or in the aggregate, or (B) the performance of services having have not had and would not reasonably be expected to have a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "Company Material Adverse Effect, (i)" through "(xiii)" above are referred to in this Agreement as ") each Company Material Contracts.")
(b) Ibex has delivered to Castelle accurate Contract is a valid, binding and complete copies of all written Contracts identified in Part 2.10 legally enforceable obligation of the Disclosure Schedule, including all amendments thereto. Part 2.10 Company or one of the Disclosure Schedule provides an accurate description of Company Subsidiaries, as the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effectcase may be, and, to the best Knowledge of the knowledge Company, of Ibex the other parties thereto, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Laws affecting creditors' rights generally and the Designated Shareholdersby general principles of equity, (ii) each such Company Material Contract is enforceable by Ibex in full force and effect (except for expiration in accordance with its terms, subject to (ithe terms thereof) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (iiiii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of neither the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed Company nor any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that Company Subsidiary is (with or without notice or lapse of time) will, or could both) in breach or default under any such Company Material Contract and, to the Knowledge of the Company, no other party to any such Company Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or its Subsidiaries, or, to the Knowledge of the Company, any other party thereto. There are no disputes pending or, to the Knowledge of the Company, threatened with respect to any Company Material Contract and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the Knowledge of the Company, is any such party threatening to do so, in each case except as has not had or would not reasonably be expected toto have, (A) result in a violation individually or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conductedaggregate, a Company Material Adverse Effect.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Contracts. (a) Part 2.10 Set forth in Section 3.13(a) of the Company Disclosure Schedule identifiesis a list of each Contract that would be required to be filed as an exhibit to a Registration Statement on Form S-1 under the Securities Act or an Annual Report on Form 10-K under the Exchange Act if such registration statement or report was filed by the Company with the SEC on the date of this Agreement and which has not previously been filed as an exhibit to the Filed Company SEC Documents. Also set forth in Section 3.13(a) of the Company Disclosure Schedule is a list of each of the following to which the Company or any of its Subsidiaries is a party which has not previously been filed as an exhibit to the Filed Company SEC Documents any:
(i) each Ibex Contract relating that contains a provision capable of being invoked that (A) is not terminable for convenience upon reasonable notice at no charge that purports to materially limit, curtail, restrict the employment ofability of the Company or any of its existing or future Subsidiaries or Affiliates to compete in any geographic area or line of business or restrict the Persons with whom it and existing or future Subsidiaries or Affiliates can compete or to whom it or its existing or future Subsidiaries or Affiliates can sell products or deliver services, (B) is not terminable for convenience upon reasonable notice at no charge that purports to grant any exclusivity, right of first refusal, right of first negotiation, most favored nation status or similar rights that materially restrict the Company or any of its Subsidiaries, or (C) imposes any liquidated damages or penalty clauses on the performance Company or any of services byits Subsidiaries, offsets from, or credits to, any employee, consultant or independent contractorother Person (other than service level credits provided pursuant to agreements with customers entered into in the ordinary course of business consistent with past practice);
(ii) each Ibex Contract relating to with any director, officer or other Affiliate of the acquisition, transfer, use, development, sharing Company other than Contracts under which the Company and its Subsidiaries have no further liabilities or license of any technology or any Proprietary Assetobligations and no continuing rights;
(iii) each Ibex Contract imposing any restriction on Ibex's right loan or ability (A) to compete with any other Personcredit agreement, (B) to acquire any product mortgage, indenture, note or other asset Contract or instrument evidencing indebtedness for borrowed money by the Company or any services from of its Subsidiaries or any other Person, Contract or instrument pursuant to sell which indebtedness for borrowed money may be incurred or is guaranteed by the Company or any product of its Subsidiaries or other asset to or perform any services by which they may be obligated for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technologythe liabilities of another person;
(iv) each Ibex Contract creating financial derivatives master agreement or involving any agency relationshipconfirmation or other agreement evidencing financial hedging or similar trading activities, distribution arrangement other than Contracts relating to currency ▇▇▇▇▇▇ or franchise relationshipderivatives entered into in the ordinary course of business consistent with past practice;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securitiesvoting agreement;
(vi) each Ibex except for Contracts listed in clauses (iii) and (iv) of Section 3.3 of the Company Disclosure Schedule, mortgage, pledge, security agreement, deed of trust or other Contract relating to granting a Lien on any material property or assets of the creation Company or any of any Encumbrance with respect to any asset of Ibexits Subsidiaries;
(vii) each Ibex Contract involving with a supplier or incorporating any guaranty, any pledge, any performance provider of products or completion bond, any indemnity services that has required payments by the Company or any surety arrangementof its Subsidiaries of consideration (whether or not measured in cash) in the fiscal year 2007 or that is reasonably likely, based on the Company’s past experience, to require such payment of consideration in fiscal year 2008 (whether or not measured in cash) of greater than $500,000 but excluding any Contract that requires payment by the Company or any of its Subsidiaries on a time and materials basis;
(viii) each Ibex Contract creating or relating with a top thirty (30) customer of the Company measured by operating revenue received by the Company and its Subsidiaries during the eighteen (18) month period prior to the date hereof, including Contracts with any partnership or joint venture or any sharing of revenuessuch customer involving software license, profits, losses, costs or liabilitiesmaintenance and/or services;
(ix) each Ibex Contract relating which makes up the top ten (10) services agreement (excluding any fixed price services agreement) of the Company measured by operating revenue received by the Company and its Subsidiaries during the eighteen (18) month period prior to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18)date hereof;
(x) each Ibex Contract constituting or relating which makes up the top ten (10) fixed price services agreement (excluding any services agreement required to a Government Contract or Government Bidbe listed pursuant to Section 3.13(a)(ix)) of the Company and its Subsidiaries) of the Company measured by operating revenue received by the Company and its Subsidiaries during the eighteen (18) month period prior to the date hereof;
(xi) Contract which makes up the top eighty-five percent (85%) of all active subscription agreements for the Company’s Freight Matrix products measured by revenue received by the Company and its Subsidiaries during the eighteen (18) month period prior to the date hereof;
(xii) “standstill” or similar agreement restricting the Company;
(xiii) agreement containing a provision capable of being invoked which relates to (A) the granting to the Company or any of its Subsidiaries of any license in or to any Intellectual Property owned by a third party that is used in any current standard or other Ibex product of the Company made generally available by the Company or is otherwise material to the Company, or (B) the granting by the Company or any of its Subsidiaries of any license to a third party in or to any Intellectual Property that are material to the Company, (except, in the case of each of clause (A) and clause (B), for any (1) licenses for commercial off-the-shelf software, (2) licenses with terms of use or service posted on a web site, (3) licenses for third party software generally available to the public, and (4) non-negotiated licenses of third party Intellectual Property that is embedded in equipment or fixtures and are used by the Company or any of its Subsidiaries for internal purposes only; and, in the case of clause (B), non-exclusive licenses to customers of the Company and its Subsidiaries in the normal and ordinary course of the day-to-day business of the Company and its Subsidiaries consistent with past practice);
(xiv) any agreement granting by the Company or any of its Subsidiaries any license to a third party to use any source code that is part of the Company Intellectual Property (except source code escrow arrangements for the benefit of customers and related agreements with customers of the Company and its Subsidiaries in the normal and ordinary course of the day-to-day business of the Company and its Subsidiaries consistent with past practice;
(xv) any reseller, distribution, alliance, collaboration, joint marketing or similar agreements that are material to the Company and its Subsidiaries;
(xvi) Contract that was entered into (1) providing for (or imposing any material ongoing indemnification or other obligations of the Company or any of its Subsidiaries in connection with) the disposition or acquisition by the Company or any of its Subsidiaries of (A) any corporation, partnership or other entity or business or (B) any material amount of assets or rights outside the ordinary course of business consistent with past practice or was inconsistent with Ibex's past practices(2) pursuant to which the Company or any of its Subsidiaries has any material ownership interest in any other person or other business enterprise, other than contracts or agreements under which the Company and its Subsidiaries have no further liabilities or obligations and no continuing rights;
(xiixvii) any settlement agreement, other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) releases immaterial in nature or amount entered into with former employees or independent contractors of the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 Company in the aggregate, ordinary course of business consistent with past practice in connection with the routine cessation of such employee’s or (B) independent contractor’s employment with the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex ContractCompany, (B) give any Person the right settlement agreements for cash only (which has been paid) and does not exceed $100,000 as to declare a default such settlement or exercise any remedy under any Ibex Contract, (C) give settlement agreements entered into more than three years prior to the date of this Agreement under which none of the Company or its Subsidiaries have any Person the right to accelerate the maturity or performance of any Ibex Contractcontinuing obligations, liabilities, or rights (D) give any Person the right to cancel, terminate or modify any Ibex Contract;excluding releases); or
(iiixviii) since December 31, 1992, Ibex has not received any notice commitment or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived agreement to enter into any of its material rights under any Material Contract.
the foregoing (d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary and other documents required to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(hbe listed on Section 3.13(a) of the Company Disclosure Schedule, Ibex has not together with any and all other Contracts of such type entered into in accordance with Section 5.2 and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required the Contracts filed as exhibits to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.Filed Company
Appears in 1 contract
Contracts. (a) Part 2.10 Except for this Agreement and the Contracts disclosed in and filed as exhibits to the Filed Company SEC Documents, Section 4.10(a) of the Company Disclosure Schedule identifiesLetter sets forth a true and complete list, and the Company has made available to Parent true and complete copies, of all Material Contracts in effect as of the Agreement Date. Each of the following contracts shall be deemed to constitute a “Material Contract”:
(i) each Ibex Contract relating that would be required to be filed by the employment of, or Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the performance of services by, any employee, consultant or independent contractorSecurities Act;
(ii) other than any Company Benefit Agreement or Company Benefit Plan, and any Contract that can be terminated for convenience on notice by the Company, each Ibex Contract relating to which the acquisitionCompany is a party that provides for recurring annual minimum payments or receipts (other than milestone, transfer, use, development, sharing royalty or license similar payments or other contingent payments) in excess of any technology or any Proprietary Asset$250,000;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) which the Company is a party relating to acquire any product or other asset indebtedness for borrowed money or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal financial guaranty in any other manner with any other Person, or (C) develop or distribute any technologyexcess of $500,000;
(iv) each Ibex Contract creating to which the Company is a party involving in excess of $100,000 that provides for the acquisition or involving disposition of any agency relationshipassets or any businesses (whether by merger, distribution arrangement sale of stock, sale of assets or franchise relationshipotherwise) that (A) has not yet been consummated or (B) has outstanding any purchase price adjustment, “earn-out,” material payment or similar obligations on the part of the Company;
(v) each Ibex Contract to which the Company is a party pursuant to which (A) the Company has continuing milestone or similar contingent payments obligations that are likely to be made or met, including upon the achievement of regulatory or commercial milestones or payment of royalties or other amounts calculated based upon any revenues or income of the Company, in each case, that could result in payments in excess of $250,000, and in each case, excluding indemnification and performance guarantee obligations provided for in the ordinary course of business; or (B) the Company has performance obligations relating to the acquisitionany research, issuance development and/or collaboration programs or transfer of any securitiespre-clinical and clinical trials and studies;
(vi) each Ibex Contract relating to which the creation of Company is a party pursuant to which the Company (A) grants to any Encumbrance third party any license to, or covenant not to sue with respect to, any material Company IP (other than non-exclusive licenses, sublicenses or covenants-not-to-sue granted in the ordinary course of business to contract manufacturers, contract research organizations, distributors or other service providers in the biotech industry); or (B) receives from any asset of Ibexthird party any license to or covenant not to sue with respect to, any material Intellectual Property (other than non-exclusive licenses for commercially available, off-the-shelf software);
(vii) each Ibex Contract involving to which the Company is a party that obligates the Company to make any capital commitment, loan or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangementcapital expenditure after the Agreement Date;
(viii) each Ibex stockholders’ rights, investors’ rights, registration rights or similar Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilitieswhich the Company is a party (excluding Contracts governing Company Stock Options and Company Restricted Stock Units);
(ix) each Ibex Contract relating (including all amendments, extensions and renewals with respect thereto) pursuant to which the purchase Company leases or sale of subleases any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18)material real property;
(x) each Ibex Contract constituting with or relating binding upon the Company, or its properties or assets that is of the type that would be required to a Government Contract or Government Bidbe disclosed under Item 404 of Regulation S-K under the Securities Act;
(xi) each Contract (A) limiting the freedom or right of the Company, in any other Ibex Contract that was entered into outside the ordinary course material respect, to engage in any line of business or was inconsistent to compete with Ibex's past practicesany other Person in any location or line of business or (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by the Company or exclusivity obligations, in each case that materially limit the freedom or right of the Company to (i) sell, distribute or manufacture any products or services or any technology or other assets or (ii) acquire or obtain any material products or services from any other Person;
(xii) any other Ibex each Contract that has a requires by its terms or is reasonably likely to require, during the remaining term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after such Contract, individually or in the delivery of a termination notice by ▇▇▇▇; and
(xiii) aggregate with any other Ibex Contract that contemplates or involves (A) related Contracts, the payment or delivery of cash or other consideration by or to the Company in an amount or having a an expected value in excess of $10,000 500,000 in the aggregatefiscal year ending December 31, 2024;
(xiii) each Contract constituting or providing for the formation, creation, operation, management or control of any subsidiary, joint venture, partnership or limited liability company;
(xiv) each Contract that prohibits the payment of dividends or distributions in respect of the capital stock of the Company, the pledging of the capital stock or other equity interests of the Company or prohibits the issuance of any guaranty by the Company;
(xv) each Contract with any Affiliate, director, executive officer (as such term is defined in the Exchange Act), holder of 1% or more of Company Outstanding Shares or, to the knowledge of the Company, any of their Affiliates (other than the Company) or any immediate family members of any of the foregoing (other than (A) offer letters that can be terminated at will without severance obligations and (B) the performance of services having a value Contracts pursuant to equity awards);
(xvi) each Contract with any Governmental Entity under which payments in excess of $10,000 100,000 were paid or payable to or received or receivable by the Company in the aggregate. most recently completed fiscal year;
(xvii) any collective bargaining agreements or other Contracts with any labor union, employee association or representative, works council or other labor organization;
(xviii) any Contract, the primary purpose of which is to provide for indemnification or guarantee of the obligations of any other Person that would be material to the business of the Company, taken as a whole, other than any such Contracts entered into in the respective categories described ordinary course of business;
(xix) any Contract providing for the resolution or settlement of any Proceeding involving the Company for an amount in clauses "excess of $500,000; or
(i)" through "(xiii)" above are referred to in this Agreement as "Material Contractsxx) any hedging, swap, derivative or similar Contract.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 Each of the Disclosure ScheduleMaterial Contracts is valid, including all amendments thereto. Part 2.10 binding and enforceable (except as such enforceability may be limited by the Bankruptcy, Equity and Indemnity Exception) on the Company, and, to the knowledge of the Disclosure Schedule provides an accurate description of the terms of Company, each Ibex Contract that other party thereto, and is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, andexcept for such failures to be valid, binding or enforceable or to the best of the knowledge of Ibex be in full force and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtorseffect as have not had, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has would not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected toto have, (A) result individually or in the aggregate, a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a Company Material Adverse Effect. There is no material default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or by the Company or, to the knowledge of the Company, any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a material term default thereunder by the Company or, to the knowledge of the Company, any other party thereto. The Company has not received in the last twelve (12) months written notice of material default or provision of termination with respect to any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex that has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreementsince been cured.
Appears in 1 contract
Contracts. (a) Part 2.10 Neither the Company nor, to the Company's Knowledge, any other party, is in default in the performance, observance or fulfillment of any of the material obligations, covenants or conditions contained in any Material Contracts to which it is a party; and, to the Knowledge of the Company, there has not occurred any event that, with the lapse of time or giving of notice or both, could constitute such a default.
(b) Section 4.18(b) of the Company Disclosure Schedule identifies:
Letter sets forth a list as of the date of this Agreement of (i) each Ibex Contract relating all agreements or contracts regarding the acquisition of a Person or business, whether in the form of an asset purchase, merger, consolidation or otherwise (including any such agreement or contract that has closed but under which one or more of the parties has executory indemnification, earn-out or other liabilities) to which the employment ofCompany is a party, (ii) all credit agreements, indentures, and other agreements related to any indebtedness for borrowed money of the Company, (iii) all joint venture or other similar agreements to which the Company is a party, (iv) all material lease agreements to which the Company is a party, (v) contracts under which the Company has advanced or loaned any other person any material amounts, (vi) guarantees of any obligations, (vii) contracts or groups of related contracts with the same party or group of parties the performance of services bywhich involves annual consideration in excess of $100,000 which are not cancelable by the Company on thirty (30) days' or less notice without premium or penalty, any employee, consultant or independent contractor;
(iiviii) each Ibex Contract relating supply agreement and each "single source" supply contract pursuant to which goods or materials that are material to the acquisitionCompany's business are supplied to the Company from an exclusive source, transfer(ix) each exclusive sales representative or exclusive distribution contract to which the Company is a party, use(x) agreements under which the Company has granted any person registration rights (including demand and piggy-back registration rights), development(xi) all contracts or agreements purporting to restrict or prohibit the Company from engaging or competing in any business or engaging or competing in any business in any geographic area, sharing (xii) all employment, consulting, retention, severance, change in control, non-competition, termination or license indemnification agreements between the Company and any director or officer of any technology the Company or any Proprietary Asset;
other employee earning noncontingent cash compensation in excess of $100,000 per year, (iiixiii) each Ibex Contract imposing any restriction on Ibex's right all labor agreements, collective bargaining agreements or ability other labor related contracts (Aincluding work rules and practices) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to which the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance Company is a party with respect to any asset labor union, labor organization, trade union, works council or similar organization or association of Ibex;
employees, (viixiv) all licenses, consents to use, non-assertion agreements and coexistence agreements concerning Intellectual Property to which the Company is a party and material software used by the Company other than non-customized software subject to customary "shrink-wrap" or "click-through" type contracts (the "Material Licenses"), (xv) each Ibex Contract involving contract to which the Company is a party with any Governmental Authority, (xvi) any contract which provides for termination, acceleration of payment or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
other special rights upon the occurrence of a change in control of the Company and (viiixvii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating all other contracts which are material to the purchase or sale of any product or other asset by or toCompany taken as a whole (collectively, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex . The Company has delivered made available to Castelle accurate Buyer a correct and complete copies copy of all written Contracts identified each agreement listed in Part 2.10 Section 4.18(a) of the Company Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remediesLetter.
(c) Except No Material Contract will, by its terms, terminate as set forth in Part 2.10 a result of the Disclosure Schedule:
(i) Ibex has not violated transactions contemplated hereby or breached, or committed require any default under, consent from any Ibex Contract, and, party thereto in order to remain in full force and effect immediately after the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material ContractEffective Time.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(hSection 4.18(d) of the Company Disclosure ScheduleLetter sets forth a list, Ibex as of the date of this Agreement, of all agreements of the Company with any executive officer or director of the Company. No officer or director of the Company, or any "associate" (as such term is defined in Rule 14a-1 under the Exchange Act) of any such officer or director, has not entered into and is not negotiating any Government Contract interest in any contract or Government Bidproperty (real or personal, and Ibex is not and will not tangible or intangible), used in, or pertaining to the business of the Company which interest would be required to make any filing with or give any notice to, or be disclosed pursuant to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result Item 404(a) of or Regulation S-K promulgated by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this AgreementSEC.
Appears in 1 contract
Contracts. (a) Part 2.10 For purposes of this Agreement, each of the Disclosure Schedule identifies:following to which any Acquired Company is a party or by which it is bound as of the date of this Agreement constitutes a “Material Contract” (excluding any Employee Plan):
(i) each Ibex Contract relating to the employment of, or the performance of services by, any employee, consultant or independent contractor;
(ii) each Ibex Contract relating to the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business requires by its terms or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) is reasonably expected to require the payment or delivery of cash or other consideration to any Acquired Company in an amount or having a an expected value in excess of $10,000 1,000,000 in the aggregatefiscal year ending December 31, 2023, or (B) the performance of services by any Acquired Company in an amount having a an expected value in excess of $10,000 1,000,000 in the aggregate. fiscal year ending December 31, 2023, and in each case which cannot be cancelled by such Acquired Company without penalty or further payment without more than ninety (Contracts 90) days’ notice;
(ii) any Contract that contains a covenant restricting the ability of the Company or any of its Subsidiaries (or which, following the consummation of the Merger, would restrict the ability of Parent or any of its Subsidiaries, including the Surviving Corporation and its Subsidiaries) to compete in any business or with any person or in any geographic area or which prohibits the Company or any of its Subsidiaries from soliciting customers or employees anywhere in the respective categories described world;
(iii) any Contract relating to Indebtedness in clauses "excess of $1,000,000 (iwhether incurred, assumed, guaranteed or secured by any asset) of any Acquired Company;
(iv) any Contract with any Person constituting a material joint venture, collaboration, partnership or similar agreement involving co-investment with a third party;
(v) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the capital stock or equity interests of an Acquired Company, the pledging of the capital stock or equity interests of an Acquired Company or the issuance of any guaranty by an Acquired Company;
(vi) any IP License or any other Contract pursuant to which, as a primary purpose, (A) a license to use any Proprietary Rights (excluding in-bound licenses for shrink-wrap, click-wrap, off-the-shelf or other commercially available software having a replacement cost and annual license fee of less than $500,000 in the aggregate for all such related Contracts) owned by any other Person is granted to any Acquired Company or (B) a license to use any Proprietary Rights (excluding non-exclusive outbound licenses in the ordinary course of business) owned by any Acquired Company is granted to any other Person;
(vii) any material Contract with a Governmental Body;
(viii) any material outsourcing Contract;
(ix) any Contracts providing for the indemnification by any Acquired Company of any person, except for any such Contract that (A) is not material to the Acquired Companies and (B) was entered into in the ordinary course of business;
(x) any stockholders, investor rights, registration rights or similar Contract;
(xi) each Contract related to the acquisition or divestiture of a business or material assets that contains continuing representations, covenants, indemnities or other obligations (including “earn-out” or other contingent payment obligations)" through ";
(xii) any Company Management Agreement;
(xiii) any Contract with hospice providers, home health providers and therapy providers, (A) not terminable upon 120 days’ notice or less and without cost or penalty, (B) involving annual amounts exceeding $1,000,000 or (C) otherwise material to the Acquired Companies, taken as a whole;
(xiv) any Contract with a third party payor or in connection with a Government Program regarding the provision of health care services by any Acquired Company involving annual amounts exceeding $1,000,000 for any particular Company Facility or otherwise material to the Acquired Companies, taken as a whole;
(xv) any Contract relating to the construction or development of, any addition to, or any material improvement project with respect to, any Company Facility or Company Management Property or with respect to any real property that, upon completion, will be a facility owned, leased, subleased and/or operated by any Acquired Company (including pursuant to any management agreement with a third party)" above are referred ;
(xvi) any Company Lease; and
(xvii) any other Contract that is currently in effect and has been filed (or is required to in this Agreement be filed) by the Company as "Material Contractsan exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act.")
(b) Ibex As of the date hereof, the Company has either delivered or made available to Castelle Parent an accurate and complete copies copy of all written Contracts identified each Material Contract or has publicly made available such Material Contract in Part 2.10 the Electronic Data Gathering, Analysis and Retrieval (E▇▇▇▇) database of the Disclosure ScheduleSEC. No Acquired Company nor, including all amendments thereto. Part 2.10 to the knowledge of the Disclosure Schedule provides an accurate description Company, the other party is in material breach of, or material default under, any Material Contract and no Acquired Company, or to the knowledge of the terms Company, the other party to a Material Contract has taken or failed to take any action that with or without notice, lapse of each Ibex Contract that is not in written formtime or both would constitute a material breach of or material default under any Material Contract. Each Material Contract identified in Part 2.10 is, with respect to the Acquired Companies and, to the knowledge of the Disclosure Schedule is Company, the other party, a valid and binding agreement in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, except as such enforcement may be subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application applicability relating to bankruptcy, insolvency and the relief of debtorsor affecting creditors’ rights, and (ii) rules of law governing specific performanceby general equitable principles. Since the Lookback Date, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has Acquired Companies have not violated or breached, or committed received any default under, written notice regarding any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a material violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex that has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreementsince been cured.
Appears in 1 contract
Sources: Merger Agreement (AlerisLife Inc.)
Contracts. (a) Part 2.10 Section 5.11(a) of the Company Disclosure Schedule identifiessets forth an accurate and complete list as of the date of this Agreement of each Contract to which any Acquired Company is a party, which is:
(i) each Ibex Contract relating for the purchase or sale of materials, supplies, goods, equipment or services that involved the payment by or to any Acquired Company of more than $5,000,000 in the employment ofaggregate in the 12 calendar months ended September 30, 2018, or is reasonably expected to involve payments by or to any Acquired Company of more than $5,000,000 during the performance of services by12 calendar months ending on September 30, any employee, consultant or independent contractor2019;
(ii) each Ibex for capital expenditures in excess of $3,000,000, or which directly relates to any capital project, the total expenses of which are reasonably likely to aggregate to more than $3,000,000;
(A) a mortgage, charge, indenture, guarantee, loan or credit agreement, security agreement or other Contract relating to the acquisitionIndebtedness and, transferin each case, usehaving an outstanding principal amount in excess of $1,000,000 or (B) any guarantee of, development, sharing or license of any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right similar commitment by the Acquired Companies with respect to the obligations, liabilities or ability (A) to compete with Indebtedness of any other Person, other than, in the case of this clause (B) to acquire any product or other asset or any services from any other Person), to sell any product or other asset to or perform any services for any other Person or to transact business or deal those entered into in any other manner with any other Personthe ordinary course of business, or (C) develop any Contract mortgaging, pledging or distribute any technologyotherwise evidencing an Encumbrance on the Transferred Equity Securities or the assets of the Acquired Companies;
(iv) each Ibex any requirements Contract creating obligating any Acquired Company to satisfy a minimum purchase or involving any agency relationship, distribution arrangement or franchise relationshipsupply obligation after the date of this Agreement in excess of $5,000,000;
(v) each Ibex a Contract relating to that contains any (A) exclusive dealing obligation, (B) “clawback” or similar undertaking requiring the acquisition, issuance reimbursement or transfer refund of any securitiesfees (excluding standard commercial rebates based on volume or payment terms), (C) “most favored nation” or similar provision granted by any Acquired Company or (D) provision that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of any Acquired Company to own, operate, sell, transfer, pledge or otherwise dispose of any assets or business;
(vi) each Ibex a Contract which is a purchase agreement, purchase and sale agreement, divestiture agreement, separation agreement, merger agreement, transaction agreement or other similar agreement to which any Acquired Company (or any of their respective predecessors or assignors) is or has been party relating to the creation purchase, divestiture, spin-out or sale of any Encumbrance other Person, business unit or assets (other than assets, inventory or equipment purchased in the ordinary course of business) involving consideration (including the assumption of liabilities and liabilities remaining with respect to the acquired entity) in excess of $5,000,000 or which has otherwise been entered into since January 1, 2015 or for which there are any asset of Ibexongoing indemnification rights or obligations or payment rights or obligations by any Acquired Company;
(vii) each Ibex a Contract involving under which any Acquired Company is lessee of, or incorporating holds or operates any guarantypersonal property owned by any other party, any pledge, any performance or completion bond, any indemnity or any surety arrangementfor which the annual rental exceeds $500,000;
(viii) each Ibex a Contract creating under which any Acquired Company is lessor of or relating permits any third party to hold or operate any partnership property, real or joint venture or any sharing of revenuespersonal, profits, losses, costs or liabilitiesfor which the annual rental exceeds $500,000;
(ix) each Ibex Contract relating to the purchase or sale of any product a license or other asset by Contract under which any Acquired Company has obtained a license to use the Intellectual Property of another Person (except for any “off-the-shelf” or toother software generally commercially available on standard terms and conditions under which an Acquired Company is the licensee) for which royalty payments exceeded $250,000 for the 12 calendar months ended September 30, or the performance of any services by or for, any Related Party (as defined in Section 2.18)2018;
(x) each Ibex a license or other material Contract constituting or relating under which an Acquired Company has granted a license to a Government Contract or Government Biduse Owned Intellectual Property to another Person, other than licenses implied by the sale of products;
(xi) a Contract not otherwise disclosed pursuant to the foregoing clauses (ix) or (x) containing any covenant or other Ibex Contract provisions that was in any way limit or restrict the Acquired Companies’ ability to use, exploit, assert, register, or enforce any Owned Intellectual Property anywhere in the world, including any Contracts entered into outside the ordinary course of business in connection with any settlement, franchise, co-existence, or was inconsistent with Ibex's past practicesnon-compete;
(xii) a joint venture, joint development agreement, collaboration agreement, alliance or partnership agreement or similar arrangement excluding agreements with any other Ibex Contract that has customer pursuant to which an Acquired Company develops a term of more than 60 days and that may not be terminated customized product or a formulation pursuant to specifications provided by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; andsuch customer;
(xiii) a Contract which is a settlement, conciliation or similar Contract with any other Ibex Contract that contemplates Governmental Authority or involves (A) pursuant to which any Acquired Company is obligated to pay consideration after the payment or delivery date of cash or other consideration in an amount or having a value this Agreement in excess of $10,000 in the aggregate500,000;
(xiv) an employment Contract whether on a full-time, part-time or (B) the performance of services having a value consulting basis receiving an annual base salary in excess of $10,000 300,000 that is not terminable by an Acquired Company without penalty or further payment and without more than 60 days’ notice;
(xv) a collective bargaining agreement or other agreement, written or oral, with a labor organization or other organization that represents or purports to represent employees; or
(xvi) a Contract that limits or purports to limit the ability of the Acquired Companies to engage or compete in any line of business, with any Person or in any market or geographical area. The Contracts listed in Section 5.11(a) of the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above Company Disclosure Schedule are referred to in this Agreement as "the “Material Contracts”.")
(b) Ibex With respect to each such Material Contract, neither any Acquired Company party to the Material Contract, nor, to the Company’s Knowledge, any other party to the Material Contract is in material breach or default under the Material Contract (nor, to the Company’s knowledge, has delivered any event occurred with which the passage of time or the giving of notice or both would reasonably be expected to Castelle accurate result in such a breach or default). Subject to the Bankruptcy and complete copies of all written Contracts identified in Part 2.10 of the Disclosure ScheduleEquity Exception, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Material Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid valid, binding, and enforceable and in full force and effect, and, effect as to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex applicable Acquired Company party thereto in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, terms except to the best extent it has previously expired in accordance with its terms after the date of the knowledge of Ibex and the Designated Shareholdersthis Agreement. Since January 1, 2016, no other Person Acquired Company has violated or breached, or committed received any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without written notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a material default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract that has not been cured or any other material term or provision termination notice with respect thereto. The Sellers have made available a true, correct and complete copy of any each Material Contract, including any amendments, supplements, modifications and material waivers and notices thereto.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Contracts. (a) Part 2.10 Except for this Agreement and the Contracts disclosed in and filed as exhibits to the Filed Company SEC Documents or a Company Benefit Plan, Section 4.10(a) of the Company Disclosure Schedule identifiesLetter sets forth a true and complete list, as of the Agreement Date, and the Company has made available to Parent true and complete copies, of:
(i) any Contract that can be terminated for convenience on notice by the Company, each Ibex Contract relating to which the employment ofCompany is a party that provides for recurring annual minimum payments or receipts (other than milestone, royalty or the performance similar payments or other contingent payments) in excess of services by, any employee, consultant or independent contractor$50,000;
(ii) each Ibex Contract to which the Company is a party relating to the acquisition, transfer, use, development, sharing or license of any technology indebtedness for borrowed money or any Proprietary Asset;financial guaranty
(iii) each Ibex Contract imposing to which the Company is a party involving in excess of $50,000 that provides for the acquisition or disposition of any restriction on Ibex's right assets or ability any businesses (whether by merger, sale of stock, sale of assets or otherwise) that (A) to compete with any other Person, has not yet been consummated or (B) to acquire has outstanding any product purchase price adjustment, “earn-out,” material payment or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technologysimilar obligations on the part of the Company;
(iv) each Ibex Contract creating to which the Company is a party pursuant to which (A) the Company has continuing milestone or involving similar contingent payments obligations, including upon the achievement of regulatory or commercial milestones or payment of royalties or other amounts calculated based upon any agency relationshiprevenues or income of the Company that could result in payments in excess of $50,000, distribution arrangement and in each case, excluding indemnification and performance guarantee obligations provided for in the ordinary course of business; (B) the Company grants to or franchise relationshipreceives from any third party any license to, or covenant not to sue or other right with respect to, any Intellectual Property material to the Company’s business (other than non-exclusive licenses entered in the ordinary course of business); or (C) the Company has uncompleted performance obligations relating to any research, development and/or collaboration programs or pre-clinical and/or clinical trials and studies;
(v) each Ibex Contract relating to which the acquisitionCompany is a party that obligates the Company to make any capital commitment, issuance loan or transfer expenditure in excess of any securities$50,000 after the Agreement Date;
(vi) each Ibex stockholders’, investors rights’, registration rights or similar Contract relating to which the creation of any Encumbrance with respect to any asset of IbexCompany is a party (excluding Contracts governing Company Stock Options and Company Restricted Stock Units);
(vii) each Ibex Contract involving (including all amendments, extensions and renewals with respect thereto) pursuant to which the Company lease or incorporating sublease any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;material real property; and
(viii) each Ibex Contract creating with or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to binding upon the purchase or sale of any product or other asset by or toCompany, or its properties or assets that is of the performance type that would be required to be disclosed under Item 404 of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Regulation S-K under the Securities Act. Each such Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" ) through "(xiii)" above are viii) is referred to in this Agreement as "a “Material ContractsContract.")”
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 Each of the Disclosure ScheduleMaterial Contracts is valid, including all amendments thereto. Part 2.10 binding and enforceable (except as such enforceability may be limited by the Bankruptcy, Equity and Indemnity Exception) on the Company, and, to the knowledge of the Disclosure Schedule provides an accurate description of the terms of Company, each Ibex Contract that other party thereto, and is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, andexcept for such failures to be valid, binding or enforceable or to the best of the knowledge of Ibex be in full force and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtorseffect as have not had, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has would not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected toto have, (A) result individually or in the aggregate, a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a Company Material Adverse Effect. There is no material default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or by the Company, or, to the knowledge of the Company, any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 default thereunder by the Company, or, to the knowledge of the Disclosure Schedule collectively constitute all of the Company, any other party thereto, in each case, excluding any Contracts necessary to enable Ibex to conduct its business listed in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(hSection 4.05(a) of the Company Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this AgreementLetter.
Appears in 1 contract
Sources: Merger Agreement (Kronos Bio, Inc.)
Contracts. Schedule 4.13 hereto sets forth a list of all Contracts to which the Company is a party or by which it is bound, except (a) Part 2.10 of the Disclosure Schedule identifies:
(i) each Ibex Contract relating to the employment of, or the performance of services by, any employee, consultant or independent contractor;
(ii) each Ibex Contract relating to the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex written Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) does not require payment by any other Ibex Contract that has a term party thereto of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate100,000, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex any Contract that is not in written form. Each Contract identified in Part 2.10 terminable by the Company upon ninety (90) days’ notice or less without the payment of the Disclosure Schedule is valid and in full force and effectany material penalty or material termination fee, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into after the date hereof and is not negotiating any Government Contract or Government Bidprior to Closing, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or Buyer in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement, (d) any Contract entered into in the Ordinary Course of Business after the date hereof and prior to the Closing, (e) purchase orders for goods and services entered into in the Ordinary Course of Business and (f) any Contract specifically listed in any other Schedule to this Agreement. Schedule 4.13 also sets forth (i) any non-competition agreements or other Contracts that would limit the Company from or after the Closing, or would limit or purport to limit any Affiliate of the Company (including post-Closing Affiliates) from or after the Closing, from competing or engaging in any business or geographic area, (ii) any Contract that would contain, impose or purport to impose most favored nation pricing, grants or requirements of exclusivity or minimum purchase requirements on the Company or any Affiliate of the Company (including post-Closing Affiliates of the Company) from or after the Closing, (iii) any indenture, credit agreement or loan agreement pursuant to which the Company has any Indebtedness for borrowed money (or guarantees thereof) in excess of $100,000, (iv) any Contract of the Company that guarantees the obligations of service providers, vendors, officers, directors, employees, Affiliates or others, (v) all Contracts with distributors, buying agents or sales agents, (vi) all Real Property Leases and (vii) information technology and software Contracts, excluding commercially available, “off-the-shelf,” or “shrinkwrap” information technology and software Contracts. Each of the Contracts listed on Schedule 4.13 is in full force and effect and the Company has not committed any breach thereof that would have or reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Contracts. (a) Part 2.10 Section 3.9(a) of the Company Disclosure Schedule identifiesidentifies each Contract (other than an Employee Plan) to which any Acquired Corporation is a party, or by which it is bound, that constitutes a Material Contract as of the date of this Agreement. For purposes of this Agreement, each of the following to which any Acquired Corporation is a party or by which it is bound as of the date of this Agreement (whether or not set forth on Section 3.9(a) of the Company Disclosure Schedule) constitutes a “Material Contract”:
(i) each Ibex any Contract relating that is a settlement, conciliation or similar agreement with or approved by any Governmental Body and pursuant to which (A) an Acquired Corporation will be required after the employment of, date of this Agreement to pay any monetary obligations or the performance of services by, any employee, consultant (B) that contains material obligations or independent contractorlimitations on such Acquired Corporation’s conduct;
(ii) each Ibex any Contract relating to (A) materially limiting the acquisition, transfer, use, development, sharing freedom or license right of any technology Acquired Corporation to engage in any line of business or to compete with any Proprietary Assetother Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by any Acquired Corporation, or (C) containing exclusivity obligations or otherwise materially limiting the freedom or right of any Acquired Corporation to sell, distribute or manufacture any products or services for any other Person;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business requires by its terms or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) is reasonably expected to require the payment or delivery of cash or other consideration to any Acquired Corporation in an amount or having a an expected value in excess of $10,000 1,000,000 in the aggregatefiscal year ending June 30, 2019 or by any Acquired Corporation in an amount having an expected value in excess of $500,000 in the fiscal year ending June 30, 2019 and in each case which cannot be cancelled by such Acquired Corporation without penalty or further payment without more than ninety (90) days’ notice;
(iv) any Contract relating to Indebtedness in excess of $150,000 (whether incurred, assumed, guaranteed or secured by any asset) of any Acquired Corporation;
(v) any Contract with any Person constituting a material joint venture, collaboration, partnership or similar profit sharing arrangement;
(vi) any Contract with a material group purchasing organization;
(vii) any Contract that by its express terms requires an Acquired Corporation, or any successor to, or acquirer of, an Acquired Corporation, to make any payment to another Person as a result of a change of control of such Acquired Corporation (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(viii) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the capital stock of an Acquired Corporation, the pledging of the capital stock or other equity interests of an Acquired Corporation or the issuance of any guaranty by an Acquired Corporation;
(ix) any (A) In-bound License and (B) Out-bound License;
(x) any other Contract that is currently in effect and has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(xi) any Contract with any Affiliate, director, executive officer (as such term is defined in the Exchange Act), Person holding 5% or more of the Shares, or, to the knowledge of the Company, any Affiliate (other than the Company) or immediate family member of any of the foregoing;
(xii) any Contract pursuant to which any Acquired Corporation has contingent obligations that upon satisfaction of certain conditions precedent will result in the payment by an Acquired Corporation of more than $1,000,000 in the aggregate over a twelve (12)-month period, in either milestone payments or royalties, upon (A) the achievement of regulatory or commercial milestones or (B) the performance receipt of services revenue or income based on product sales; and
(xiii) any Contract for the acquisition or divestiture of assets that contains financial covenants, indemnities or other payment obligations that would reasonably be expected to result in the future payment or delivery of cash or other consideration to or by any Acquired Corporation in an amount having a an expected value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts1,000,000.")
(b) Ibex As of the date of this Agreement, the Company has either delivered or made available to Castelle Parent an accurate and complete copies copy of all written Contracts identified each Material Contract or has publicly made available an accurate and complete copy of such Material Contract in Part 2.10 the Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) database of the Disclosure ScheduleSEC. No Acquired Corporation nor, including all amendments thereto. Part 2.10 to the knowledge of the Disclosure Schedule provides an accurate description Company, the other party is in material breach of, or material default under, any Material Contract and no Acquired Corporation, or to the knowledge of the terms Company, the other party to a Material Contract has taken or failed to take any action that with or without notice, lapse of each Ibex Contract that is not in written formtime or both would constitute a material breach of or material default under any Material Contract. Each Material Contract identified in Part 2.10 is, with respect to the Acquired Corporations and, to the knowledge of the Disclosure Schedule is Company, the other party, a valid and binding agreement in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, except as such enforcement may be subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application applicability relating to bankruptcy, insolvency and the relief of debtorsor affecting creditors’ rights, and (ii) rules of law governing specific performanceby general equitable principles. Since January 1, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of 2017, the Disclosure Schedule:
(i) Ibex has Acquired Corporations have not violated or breached, or committed received any default under, written notice regarding any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a material violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex that has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreementsince been cured.
Appears in 1 contract
Contracts. (a) Part 2.10 Not enter into any new Contracts or Equipment Leases relating to the Assets, nor amend, supplement, terminate or otherwise modify any Contract or Equipment Lease without the prior written consent of the Disclosure Schedule identifiesBuyer, which consent may be granted or withheld in Buyer’s reasonable discretion, provided, however:
(i) each Ibex Buyer’s consent shall not be required with respect to any Contract relating to the employment of, or the performance of services by, any employee, consultant or independent contractor;
(ii) each Ibex Contract relating to the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability Equipment Lease that (A) to compete with any other Personwill not be assumed by Buyer nor will burden the Property following the Closing, (B) (x) is terminable on 30 days’ notice without cost or penalty to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal Buyer and (y) requires the payment of no more than $200,000 in any other manner with any other Personcalendar year, or (C) develop is required or distribute permitted (without Seller approval) by the terms of the Management Agreement or the Ground Leases. Seller shall promptly notify Buyer in writing of any technology;such new Contract or Equipment Lease and shall provide Buyer a copy of any such new Contract or Equipment Lease promptly after the execution thereof and following Seller’s receipt thereof; and
(ivii) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance Buyer’s consent shall not be required with respect to any asset Contract which does not meet the requirements of Ibex;clauses (A) through (C) of clause (i) above but is entered into by Seller or Manager in connection with emergency maintenance or repairs at the Property (and Seller shall provide Buyer a copy of any such new Contract promptly after the execution thereof and following Seller’s receipt thereof), and the costs of such contract shall be prorated in accordance with the terms of Article X hereof; and
(viiiii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating Buyer shall not unreasonably withhold its consent to any partnership Contract which does not meet the requirements set forth in clauses (i) or joint venture (ii) above, but which is entered into by Seller or Manager in connection with a Leasing Cost pursuant to a Lease permitted pursuant to (c)(i) above or (d) below. If Seller enters into any sharing third party Contract or Equipment Lease (A) with the approval of revenuesBuyer or (B) as permitted in clause (i) through (iii) above, profits, losses, costs then such Contract or liabilities;
(ix) each Ibex Equipment Lease shall be included in the definition of “Contract” or “Equipment Lease” and shall be assigned to and assumed by Buyer at the Closing in accordance with this Agreement. If Buyer does not reject or approve in writing a new Contract relating or Equipment Lease or an amendment or modification to a Contract or Equipment Lease within the purchase or sale earlier of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating seven (7) Business Days, and (y) such earlier period if and to the extent required under the Management Agreement after receipt of a Government copy thereof and Seller’s request for approval, then Buyer shall be deemed to have approved such Contract or Government Bid;
(xiEquipment Lease or amendment or modification. Nothing in this Section 3.4(c) any other Ibex Contract that was entered shall be deemed to restrict Seller’s ability to enter into outside Bookings in the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contractsbusiness.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Ryman Hospitality Properties, Inc.)
Contracts. (a) Part 2.10 Section 4.18(a) of the Disclosure Schedule identifies(with paragraph references corresponding to those set forth below) contains a true and complete list of all Material Contracts of FirstFederal including, but not limited to, the following:
(i) each Ibex Contract relating to the employment ofContracts and other agreements with any current or former officer, director, shareholder, affiliate, employee, consultant, or the performance of services by, any employee, consultant or independent contractoragent;
(ii) each Ibex Contract relating Contracts with any person containing any provision or covenant prohibiting or limiting the ability of FirstFederal to engage in any business activity or compete with any person, or prohibiting or limiting the acquisition, transfer, use, development, sharing or license ability of any technology or any Proprietary Assetperson to compete with FirstFederal;
(iii) each Ibex Contract imposing Contracts relating to the future disposition or acquisition of any restriction on Ibex's right Assets, other than dispositions or ability (A) to compete acquisitions in the ordinary course of business consistent with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technologypast practice;
(iv) each Ibex Contract creating or involving Contracts under which FirstFederal agrees to indemnify any agency relationship, distribution arrangement or franchise relationshipperson;
(v) each Ibex Contract Contracts and other agreements relating to the acquisitionborrowing of money (other than federally insured deposits), creation of Liens, issuance of letters of credit, or transfer the guarantee of any securitiesthe payment of Liabilities or performance of obligations by FirstFederal;
(vi) each Ibex Contract Contracts and other agreements relating to the creation provision of any Encumbrance with respect to any asset of Ibexservices which are not cancelable without penalty in thirty (30) or fewer days notice;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangementpowers of attorney;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any contracts and other Ibex Contract that was entered into agreements made outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇business; and
(xiiiix) any all other Ibex Contract contracts that contemplates or involves (A) involve the payment or delivery potential payment, pursuant to the terms of cash any such contract, by or other consideration to FirstFederal of more than $250,000 and cannot be terminated within 360 calendar days after giving notice of termination without resulting in an amount any material cost or having a value in excess of $10,000 in the aggregate, penalty to FirstFederal or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contractsany Subsidiary.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified required to be disclosed in Part 2.10 Section 4.18(a) of the Disclosure Schedule is valid and in full force and effecteffect and constitutes a legal, andvalid and binding agreement, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject of each party thereto; and except as disclosed in Section 4.18(b) of the Disclosure Schedule neither FirstFederal, nor, to the Knowledge of FirstFederal, any other party to such Contract, is or has received notice that it is, in violation or breach of or default under any such Contract (ior with notice or lapse of time or both, would be in violation or breach of or default under any such Contract). None of the Contracts disclosed in Section 4.18(a) laws of general application relating to bankruptcy, insolvency and the relief Disclosure Schedule will terminate or lapse by reason of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remediesthe transactions contemplated by this Merger Agreement.
(c) Except as set forth disclosed in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(hSection 4.18(c) of the Disclosure Schedule, Ibex has not entered into and FirstFederal is not negotiating a party to or bound by any Government Contract that has been or Government Bidcould reasonably be expected to have, individually or in the aggregate with any other such Contracts, a Materially Adverse Effect on FirstFederal.
(d) Except as disclosed in Section 4.18(d) of the Disclosure Schedule and Ibex is not any other Section of the Disclosure Schedule, there are no Contracts, commitments, leases, permits or other instruments necessary to hold the Assets by FirstFederal, as and will not be required to make any filing with or give any notice towhere now held by FirstFederal, or to obtain any Consent fromconduct the business of FirstFederal, any Governmental Body under as and where now operated by FirstFederal, or in connection with any Government Contract related to the operation or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any management of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this AgreementAssets.
Appears in 1 contract
Sources: Agreement of Affiliation and Plan of Merger (First Shenango Bancorp Inc)
Contracts. (a) Part 2.10 Section 4.10(a) of the Company Disclosure Schedule identifiesidentifies each Company Contract that constitutes a Material Contract as of the Agreement Date. Each of the following Company Contracts shall be deemed to constitute a “Material Contract” for purposes of this Agreement:
(i) each Ibex Contract relating to the employment of, or the performance of services by, any employee, consultant or independent contractor;
(ii) each Ibex Contract relating to the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Company Contract that was entered into outside the ordinary course of business requires by its terms or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) is reasonably likely to require the payment or delivery of cash or other consideration by or to the Company or any of its Subsidiaries in an amount or having a an expected value in excess of $10,000 350,000 in the aggregatefiscal year ending December 31, 2021 or in any fiscal year thereafter and cannot be cancelled by the Company or any of its Subsidiaries without penalty or further payment without more than ninety (90) days’ notice (other than payments for services rendered to the date), excluding commercially available off-the-shelf software licenses and Software-as-a-Service offerings, generally available patent license agreements entered into in the ordinary course of business and non-exclusive outbound licenses entered into in the ordinary course of business;
(ii) any Company Contract pursuant to which the Company or any of its Subsidiaries has contingent obligations that upon satisfaction of certain conditions precedent will result in the payment by the Company or any of its Subsidiaries of more than $350,000 in the aggregate in the fiscal year ending December 31, 2021 or in any fiscal year thereafter, in either milestone payments or royalties, upon (A) the achievement of regulatory or commercial milestones or (B) the receipt of revenue or income based on product sales;
(iii) any Company Contract (A) limiting the freedom or right of the Company or any of its Subsidiaries, in any material respect, to engage in any line of business, to make use of any material Company IP or to compete with any other Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by the Company or any of its Subsidiaries or (C) containing exclusivity obligations or restrictions or otherwise materially limiting the freedom or right of the Company or any of its Subsidiaries: (1) to sell, distribute or manufacture any products or services or any technology or other assets to or for any other Person, or (2) to acquire or obtain any products or services from any other Person;
(iv) any Company Contract constituting a joint venture, partnership or similar profit-sharing arrangement;
(v) any Company Contract constituting a Company Employee Agreement pursuant to which the Company or any of its Subsidiaries is or may become obligated to (A) make any severance, termination, or similar payment to any Company Associate or any spouse or heir of any Company Associate except for severance, termination or similar payments that do not exceed $200,000 in cash per beneficiary or that is required by applicable Laws, (B) make any bonus, deferred compensation or similar payment (other than payments constituting base salary, bonuses or commissions paid in the ordinary course of business or in accordance with past performance of services having or a value Company Employee Agreement) in excess of $10,000 200,000 to any Company Associate, or (C) grant or accelerate the vesting of, or otherwise modify, any Company Stock Award other than accelerated vesting provided in the aggregate. Company Equity Plans or any other Company Employee Agreement;
(Contracts vi) any Company Contract with any Affiliate, director, executive officer (as such term is defined in the respective categories described Exchange Act), holder of 5% or more of Shares, or to the Knowledge of the Company, any of their Affiliates (other than the Company and its Subsidiaries) or immediate family members (other than offer letters that can be terminated at will without severance obligations and Company Contracts pursuant to Company Stock Awards);
(vii) any Company Contract, that is currently in clauses "effect and under which there remain material executory obligations, that relates to the acquisition or disposition of any material business, a material amount of stock or assets of any Person or any real property (i)" through "whether by merger, sale of stock, sale of assets or otherwise) but excluding any transfer agreements, services agreements, clinical trial agreements and non-exclusive licenses granted in the ordinary course of business;
(xiii)" above are referred viii) any Company Contract with any Governmental Body, other than any Company Contract, authorization, approval or program under which the Company or any of its Subsidiaries, directly or indirectly, (A) receives refunds, rebates, repayments, reimbursements or similar payments from or (B) makes any payments to, in each case, any Governmental Body in connection with Medicare and any similar federal, state or local governmental programs;
(ix) any Company Contract that is a settlement, conciliation or similar agreement with or approved by any Governmental Body: (A) pursuant to which the Company or any of its Subsidiaries will be required after the Agreement Date to pay any monetary obligations or (B) that contains material obligations or limitations on the Company’s or any of its Subsidiaries’ conduct;
(x) any Company Contract relating to Indebtedness in this Agreement excess of $1,000,000 (whether incurred, assumed, guaranteed or secured by any asset) of the Company or any of its Subsidiaries;
(xi) any hedging, swap, derivative or similar Company Contract; and
(xii) any other Company Contract that is currently in effect and has been filed (or is required to be filed) by the Company as "Material Contractsan exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act.")
(b) Ibex As of the Agreement Date, the Company has either delivered or made available to Castelle Parent or Parent’s Representatives an accurate and complete copies copy of all written Contracts identified each Material Contract or has publicly made available such Material Contract in Part 2.10 the Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) database of the Disclosure ScheduleSEC. Neither the Company, including all amendments thereto. Part 2.10 any of its Subsidiaries nor, to the Knowledge of the Disclosure Schedule provides an accurate description Company, the other party is in material breach of or material default under any Material Contract and, neither the Company, any of its Subsidiaries, nor, to the Knowledge of the terms Company, the other party has taken or failed to take any action that with or without notice, lapse of each Ibex Contract that is not in written formtime or both would constitute a material breach of or material default under any Material Contract. Each Material Contract identified in Part 2.10 is, with respect to the Company or any of its Subsidiaries and, to the Knowledge of the Disclosure Schedule is Company, the other party, a valid agreement, binding, and in full force and effect, and, to . To the best Knowledge of the knowledge of Ibex and the Designated ShareholdersCompany, each Material Contract is enforceable by Ibex the Company or its Subsidiaries in accordance with its terms, subject to (i) laws Laws of general application relating to bankruptcy, insolvency and the relief of debtors, debtors and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 . Since January 1, 2020 through the Agreement Date, neither the Company nor any of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed its Subsidiaries have received any default under, written notice regarding any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a or default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex Material Contract that has not received any notice since been cured, except for violations or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived breaches that are immaterial. Neither the Company nor any of its Subsidiaries have waived in writing any material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Contracts. (a) Part 2.10 Section 3.15 of the Disclosure Schedule identifies:sets forth, as of the date of this Agreement, a true and complete list of each Contract (whether or not such Contract is an Assumed Contract) of Seller under which Seller or any Subsidiary of Seller has ongoing executory obligations or the ability to enforce rights thereunder and that is included within any of the following categories (the “Material Contracts”):
(i) each Ibex any Contract relating to for the employment ofpurchase of materials, supplies, equipment or services under which (i) Seller has made payments in excess of $10,000 during the performance twelve months immediately preceding the date of services by, any employee, consultant or independent contractorthis Agreement and (ii) it is reasonably anticipated that Seller will make payments in excess of $10,000 during the twelve months immediately following the date of this Agreement;
(ii) each Ibex any Contract relating pursuant to the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary Assetwhich Seller is obligated to provide services at a price fixed (but excluding warranty and maintenance Contracts);
(iii) each Ibex any warranty or maintenance Contract imposing any restriction on Ibex's right pursuant to which Seller is obligated to provide services at a price fixed, for which the fully burdened cost of complete performance by Seller currently exceeds or ability (A) is reasonably expected by Seller to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technologyexceed such price;
(iv) each Ibex any Contract creating that expires (or involving may be renewed at the option of any agency relationshipPerson other than Seller so as to expire) more than one year after the date of this Agreement, distribution arrangement including any Contract under which Seller is required to provide support, maintenance, development or franchise relationshipother services to any Person for a period of more than one year after the date of this Agreement;
(v) each Ibex any Contract relating that Seller is not able to terminate at any time, without penalty, upon less than thirty-five (35) days’ notice to the acquisition, issuance or transfer of any securitiesother party to such Contract;
(vi) each Ibex any Contract relating containing covenants limiting the freedom of the Seller to the creation compete or engage in any line of business or with any Encumbrance with respect Person or in any geographic area or market, including any Contract granting to any asset Person any “most favored nation” pricing, exclusive sales, distribution, marketing or other exclusive rights, rights of Ibexrefusal, rights of first negotiation or similar rights or terms;
(vii) each Ibex any trust indenture, mortgage, promissory note, loan agreement or other Contract involving or incorporating any guarantyfor the borrowing of money, any pledge, any performance or completion bond, any indemnity or any surety arrangementContract for any leasing transaction of the type required to be capitalized in accordance with GAAP;
(viii) each Ibex any executory Contract creating for any capital expenditure in excess of $10,000 individually or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities$25,000 in the aggregate;
(ix) each Ibex any Contract relating to in accordance with which the purchase Seller or sale any of its Subsidiaries is a lessor or lessee of any product real or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18)personal property;
(x) each Ibex any Contract constituting providing a third party with rights to, or relating to a Government Contract based upon, any owned Seller Intellectual Property including any nondisclosure or Government Bidconfidentiality agreements;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practicesInbound Licenses;
(xii) any other Ibex Contract that has a term of more than 60 days and that may with any related party or any Person with whom Seller does not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; anddeal at arms’ length;
(xiii) any other Ibex Contract that contemplates relating to the disposition or involves (A) acquisition of assets or any interest in any business enterprise, except for the payment sale of products or delivery of cash or other consideration in an amount or having a value in excess of $10,000 services in the aggregateordinary course of business;
(xiv) any Contract with any Governmental Authority;
(xv) any Contract under which the entering into this Agreement or the consummation of the transactions contemplated hereby would give rise to, or trigger the application of, any rights of any third party or any obligations that would come into effect upon the consummation of the transactions;
(Bxvi) any Contract relating to settlement of any Action;
(xvii) any Contract for the performance lease of services having a value personal property or equipment; and
(xviii) any Contract with any investment banker, broker, advisor or similar Person in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in connection with this Agreement as "Material Contractsand the transactions contemplated hereby.")
(b) Ibex has delivered to Castelle accurate Each Material Contract that is an Assumed Contract (the “Assumed Material Contracts”) is in executed, written form, and a true and complete copies copy of all written Contracts identified in Part 2.10 each Assumed Material Contract has been provided to Buyer. Except as set forth on Section 3.15(b)(i) of the Disclosure Schedule, including all amendments theretoneither Seller nor, to the knowledge of Seller, any other party to any Assumed Material Contract is in any material respect in violation or breach of, or in material default under, nor has there occurred an event or condition that with the passage of time or giving of notice (or both) would constitute a material default under, or permit the acceleration of any rights under or termination of, any Assumed Material Contract. Part 2.10 Seller has not released any of its material rights under any Assumed Material Contract. Except as set forth on Section 3.15(b)(ii) of the Disclosure Schedule provides Schedule, neither Seller nor any counterparty to an accurate description Assumed Material Contact has given any written notice of its intention to terminate nor has otherwise sought to repudiate or disclaim any Assumed Material Contract. No counterparty to any Assumed Material Contract has notified Seller in writing of the assertion of any right to renegotiate the terms or conditions of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 such Assumed Material Contract.
(c) Except as set forth on Section 3.15(c)(i) of the Disclosure Schedule Schedule, each Assumed Contract is valid and in full force and effecteffect and constitutes a legal, valid and binding agreement, enforceable against Seller or a Subsidiary of Seller as party thereto and, to the best of the knowledge of Ibex and the Designated ShareholdersSeller, is enforceable by Ibex each other party thereto, in accordance with its terms, subject to (i) laws of general application except that the enforcement hereof or thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws relating to bankruptcy, insolvency the rights of creditors and the relief general principles of debtors, and (ii) rules of law governing equity applicable to specific performance, injunctive relief and other equitable remedies.
(c) . Except as set forth in Part 2.10 on Section 3.15(c)(ii) of the Disclosure Schedule:
(i) Ibex , Seller has not violated or breached, or committed any default under, any Ibex Contract, and, to the best performed all of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) material obligations required to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurredbe performed by it, and no circumstance or condition existsis entitled to all benefits, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of under the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Assumed Contract.
(d) No Person There is renegotiatingno dispute regarding the enforceability, validity or scope of any Assumed Contract, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex performance under any Material such Assumed Contract, including with respect to any payments to be made or received by Seller thereunder. There are no IP Contracts included in the Assumed Contracts under which there is any dispute regarding the validity or scope of such Assumed Contract or performance under such Assumed Contract, including with respect to any other material term payments to be made or provision of received by Seller thereunder. Seller has not received any Material Contractwritten notice, and to Seller’s knowledge, Seller has no reason to believe, that any counterparty to an IP Contract with Seller will not license Intellectual Property to or from Buyer immediately following the Closing Date on terms and conditions materially similar to those used in its current licenses to or from Seller.
(e) The Contracts identified To Seller’s knowledge, no director, agent, employee or consultant or other independent contractor of Seller is a party to, or is otherwise bound by, any Contract, including any confidentiality, noncompetition or proprietary rights agreement, with any other Person that in Part 2.10 any way adversely affects (i) the performance of his or her duties for Seller or (ii) his or her ability to assign to Seller rights to any invention, improvement, discovery or information relating to the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conductedBusiness.
(f) Part 2.10 of Assuming the Disclosure Schedule identifies Required Consents are obtained, all Assumed Contracts will continue to be in full force and provides a brief description of each proposed Contract as effect with respect to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description Business and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) Acquired Assets immediately after the consummation of the Merger or any of the other transactions contemplated by this Agreementhereby.
Appears in 1 contract
Sources: Asset Purchase Agreement (Cytori Therapeutics, Inc.)
Contracts. (a) Part 2.10 Schedule 3.13(a) attached hereto contains a complete, current and correct list of all of the Disclosure Schedule identifiesfollowing types of Contracts to which the Company is a party or by which any of its properties or assets are bound:
(i) each Ibex any Contract relating to which involves expenditures or receipts by Company (other than Agreements which do not require payments or yield receipts of more than $10,000 in any twelve (12) month period or more than $25,000 in the employment of, or the performance of services by, any employee, consultant or independent contractoraggregate);
(ii) each Ibex any Contract relating containing a covenant or covenants which purport to limit the acquisitionCompany’s ability or right to engage in any lawful business activity or to compete with any Person (including without limitation all non-competition, transfernon-disclosure, use, development, sharing or license of any technology or any Proprietary Assetand non-solicitation agreements);
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Personof its officers, directors, employees or Affiliates, not otherwise listed on Schedule 3.24 or Schedule 3.27 hereto (B) to acquire any product or other asset or any services from any other Personincluding, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Personwithout limitation, or (C) develop or distribute any technologyall non-competition, severance, and indemnification agreements);
(iv) each Ibex Contract creating any agreement presently in effect for the license of any patent, copyright, trade secret or other proprietary information agreements involving any agency relationship, distribution arrangement the payment by or franchise relationshipto the Company in excess of $5,000 per year;
(v) each Ibex Contract relating to the acquisition, issuance or transfer any power of any securitiesattorney;
(vi) each Ibex Contract relating any agreement entered into outside the Ordinary Course of Business and presently in effect, involving payment to the creation or obligations of any Encumbrance with respect to any asset in excess of Ibex;$5,000, not otherwise described in this Section 3.13(a); and
(vii) each Ibex Contract involving or incorporating any guarantyloan agreement, any pledgeagreement of indebtedness, any performance or completion bondnote, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenuessecurity agreement, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product guarantee or other asset by document pursuant to or to, in connection with the Company’s receipt or the performance extension of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value credit for money borrowed in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts5,000.")
(b) Ibex has delivered All of Company’s oral Contracts that are responsive to Castelle accurate and complete copies of all written Contracts the categories listed above are identified in Part 2.10 the Disclosure Schedules, other than those oral Contracts which may be terminated at any time without any requirement that the Company make any payments thereunder except in connection with products purchased or services rendered prior to the date of termination.
(c) Company has all the Contracts it needs to carry on Company’s business as now being conducted. All of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Contracts listed on Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and 3.13(a) are in full force and effect, andand are valid, binding, and enforceable in accordance with their terms, except as enforceability may be limited (i) by bankruptcy, insolvency or other Laws affecting creditors’ rights generally and the exercise of judicial discretion in accordance with general equitable principles or (ii) due to the fact that one or more other parties thereto was not duly authorized or competent to enter into such Contract. To the Company’s Knowledge, each other party to each such Contract was duly authorized and competent to enter into such Contract. There exists no breach, default or violation on the part of Company or, to the best Knowledge of Company, on the knowledge part of Ibex and any other party to any such Contract nor has Company received written or, to the Designated ShareholdersKnowledge of Company, is enforceable by Ibex in accordance with its termsother notice of any breach, subject to default or violation. Except as expressly identified on Schedule 3.13(c), (i) laws Company has not received written or to the Knowledge of general application relating the Company other notice of an intention by any party to bankruptcyany such Contract that provides for a continuing obligation by any party thereto on the date hereof to terminate such Contract or amend the terms thereof, insolvency and other than modifications in the relief Ordinary Course of debtors, Business that do not adversely affect Company and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 the consummation of the Disclosure Schedule:
(i) Ibex transactions contemplated by this Agreement will not affect the validity, enforceability and continuation of the Contracts on the same terms applicable to such Contracts as of the date hereof. Company has not violated or breached, or committed waived any default under, rights under any Ibex such Contract, and, to . To the best Knowledge of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated ShareholdersCompany, no event has occurredoccurred which either entitles, and no circumstance or condition existswould, that (with or without notice or lapse of timetime or both, entitle any party to any such Contract (other than Company) willto declare breach, default or violation under any such Contract or to accelerate, or could reasonably be expected towhich does accelerate, (A) result in a violation or breach the maturity of any indebtedness of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy Company under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material such Contract.
(d) No Person is renegotiatingFor purposes of this Section 3.13, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex “Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has ” shall not entered into and is not negotiating include any Government Contract Contracts or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this AgreementLeases.
Appears in 1 contract
Contracts. Except as provided in this Section 3.07, Schedule 3.07 lists all of the following contracts (written or oral) to which (a) Part 2.10 any of the Disclosure Schedule identifiesSellers or their respective Affiliates (other than the Purchased Companies) with respect to the Business or (b) any of the Purchased Companies is a party:
(ia) each Ibex Contract relating to the employment of, or contracts the performance of services by, which is expected to involve consideration payable subsequent to the date of this Agreement in excess of $300,000 in the aggregate or $100,000 in any employee, consultant twelve-month period and which are not terminable on ninety (90) days’ notice or independent contractorless without penalty or premium;
(iib) each Ibex Contract relating to contracts which restrict the acquisition, transfer, use, development, sharing or license ability of any technology of the Purchased Companies to freely conduct the Business or which contain any Proprietary Assetcovenant not to compete in any line of business, in any geographic area or with any Person;
(iiic) each Ibex Contract imposing contracts under which any restriction on Ibex's right of the Purchased Companies has loaned or ability borrowed money or guaranteed borrowings of money (Aexcluding (i) to compete with any other Person, (B) to acquire any product investments in publicly traded corporate debt instruments or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal governmental debt instruments in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practicesand (ii) any borrowing by any Purchased Company from the Lincoln National Corporation Short-Term Investment Pool);
(xiid) contracts between any of the Purchased Companies, on the one hand, and any Seller or any Affiliates of any Seller (other than any Purchased Companies), on the other hand;
(e) contracts pursuant to which any Lien, other than a Permitted Lien, is placed or imposed on any Transferred Asset or any asset of any of the Purchased Companies;
(f) contracts under which the Purchased Companies or any Seller are licensors or licensees of Intellectual Property;
(g) employment agreements and employee severance agreements with Business Employees or with respect to which any of the Companies have or may have any liability;
(h) partnership, joint venture or limited liability company agreements;
(i) any indemnification agreement or guarantee; or
(j) any other Ibex Contract that has a term material contract not terminable upon ninety (90) days written notice without penalty or premium. Schedule 3.07 excludes contracts of more than 60 days assumed or ceded reinsurance, policies of insurance and that may not be terminated other contracts constituting products or services sold or administered by Ibex the Companies in the ordinary course of business, agency or commission agreements, leases and subleases of real property, licenses and other agreements related to the use of Computer Programs, Business Employee Plans, and the Related Agreements. None of (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (Aa) the payment Sellers or delivery of cash their respective Affiliates (other than the Purchased Companies) or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered the Purchased Companies or, to Castelle accurate and complete copies the knowledge of all written Contracts Sellers, any other party is in breach of or default under any contract identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure on Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form3.07. Each Contract identified in Part 2.10 of the Disclosure Schedule such contract is valid and in full force and effect, and, to the best of the knowledge of Ibex effect and the Designated Shareholders, is valid and enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remediesEnforceability Exceptions.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Lincoln National Corp)
Contracts. (a) Part 2.10 Neither the Company nor, to the Company’s Knowledge, any other party, is in default in the performance, observance or fulfillment of any of the material obligations, covenants or conditions contained in any Material Contracts to which it is a party; and, to the Knowledge of the Company, there has not occurred any event that, with the lapse of time or giving of notice or both, could constitute such a default.
(b) Section 4.18(b) of the Company Disclosure Schedule identifies:
Letter sets forth a list as of the date of this Agreement of (i) each Ibex Contract relating all agreements or contracts regarding the acquisition of a Person or business, whether in the form of an asset purchase, merger, consolidation or otherwise (including any such agreement or contract that has closed but under which one or more of the parties has executory indemnification, earn-out or other liabilities) to which the employment ofCompany is a party, (ii) all credit agreements, indentures, and other agreements related to any indebtedness for borrowed money of the Company, (iii) all joint venture or other similar agreements to which the Company is a party, (iv) all material lease agreements to which the Company is a party, (v) contracts under which the Company has advanced or loaned any other person any material amounts, (vi) guarantees of any obligations, (vii) contracts or groups of related contracts with the same party or group of parties the performance of services bywhich involves annual consideration in excess of $100,000 which are not cancelable by the Company on thirty (30) days’ or less notice without premium or penalty, any employee, consultant or independent contractor;
(iiviii) each Ibex Contract relating supply agreement and each “single source” supply contract pursuant to which goods or materials that are material to the acquisitionCompany’s business are supplied to the Company from an exclusive source, transfer(ix) each exclusive sales representative or exclusive distribution contract to which the Company is a party, use(x) agreements under which the Company has granted any person registration rights (including demand and piggy-back registration rights), development(xi) all contracts or agreements purporting to restrict or prohibit the Company from engaging or competing in any business or engaging or competing in any business in any geographic area, sharing (xii) all employment, consulting, retention, severance, change in control, non-competition, termination or license indemnification agreements between the Company and any director or officer of any technology the Company or any Proprietary Asset;
other employee earning noncontingent cash compensation in excess of $100,000 per year, (iiixiii) each Ibex Contract imposing any restriction on Ibex's right all labor agreements, collective bargaining agreements or ability other labor related contracts (Aincluding work rules and practices) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to which the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance Company is a party with respect to any asset labor union, labor organization, trade union, works council or similar organization or association of Ibex;
employees, (viixiv) all licenses, consents to use, non-assertion agreements and coexistence agreements concerning Intellectual Property to which the Company is a party and material software used by the Company other than non-customized software subject to customary “shrink-wrap” or “click-through” type contracts (the “Material Licenses”), (xv) each Ibex Contract involving contract to which the Company is a party with any Governmental Authority, (xvi) any contract which provides for termination, acceleration of payment or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
other special rights upon the occurrence of a change in control of the Company and (viiixvii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating all other contracts which are material to the purchase or sale Company taken as a whole (collectively, the “Material Contracts”). The Company has made available to Buyer a correct and complete copy of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined each agreement listed in Section 2.18);
(x4.18(a) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Company Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remediesLetter.
(c) Except No Material Contract will, by its terms, terminate as set forth in Part 2.10 a result of the Disclosure Schedule:
(i) Ibex has not violated transactions contemplated hereby or breached, or committed require any default under, consent from any Ibex Contract, and, party thereto in order to remain in full force and effect immediately after the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material ContractEffective Time.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(hSection 4.18(d) of the Company Disclosure ScheduleLetter sets forth a list, Ibex as of the date of this Agreement, of all agreements of the Company with any executive officer or director of the Company. No officer or director of the Company, or any “associate” (as such term is defined in Rule 14a-1 under the Exchange Act) of any such officer or director, has not entered into and is not negotiating any Government Contract interest in any contract or Government Bidproperty (real or personal, and Ibex is not and will not tangible or intangible), used in, or pertaining to the business of the Company which interest would be required to make any filing with or give any notice to, or be disclosed pursuant to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result Item 404(a) of or Regulation S-K promulgated by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this AgreementSEC.
Appears in 1 contract
Sources: Merger Agreement (Curagen Corp)
Contracts. As of the date hereof, neither the Company nor any of its Subsidiaries is a party to, subject to or otherwise bound by:
(a) Part 2.10 any Contract or series of related Contracts pursuant to which the Company or any of its Subsidiaries has made aggregate expenditures or payments in excess of $50,000 in the past twelve (12) months and for which the Company or any of its Subsidiaries has ongoing obligations or rights thereunder;
(b) any Contract for the purchase of equipment in excess of $100,000;
(c) any Contract (other than a Contract entered in the ordinary course of business consistent with past practice) that expires more than one year after the date of this Agreement ;
(d) any Contract for distribution of Company products between the Company or any of its Subsidiaries, on the one hand, and any other Person, on the other hand, wherein or whereby the Company or any of its Subsidiaries have agreed to, or assumed, any obligation or duty to indemnify, reimburse, hold harmless, guarantee or otherwise assume or incur any obligation or liability or provide a right of rescission with respect to the infringement or misappropriation by the Company or any of its Subsidiaries or such other Person of the Disclosure Schedule identifies:Intellectual Property of any Person other than the Company or any of its Subsidiaries and under which the Company’s or its Subsidiaries’ liability for such obligation is not capped at a particular dollar amount;
(ie) each Ibex any distributor, reseller or similar Contract relating under which the Company does not have the right to terminate without penalty on less than 90 days’ notice;
(f) any Contract with any current or former stockholder, employee, officer or director of the employment ofCompany, or any “affiliate” or “associate” of such persons (as such terms are defined in the performance rules and regulations promulgated under the Securities Act) (any of the foregoing, a “Related Party”), including any Contract providing for the furnishing of services by, rental of real or personal property from, or otherwise requiring payments to, or from, any employeeRelated Party, consultant other than Contracts with customers, distributors or independent contractorresellers;
(iig) each Ibex any Contract relating to limiting the acquisition, transfer, use, development, sharing or license freedom of any technology the Company or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right of its Subsidiaries to engage or ability (A) to participate, or compete with any other Person, (B) in any line of business, market or geographic area, or to acquire make use of any product Company Intellectual Property, or any Contract under which the Company or any Subsidiary grants most favored nation pricing, exclusive sales, distribution, marketing or other asset exclusive rights, rights of refusal, rights of first negotiation or similar rights and/or terms to any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop any Contract otherwise limiting the right of the Company or any of its Subsidiaries to sell, distribute or manufacture any technologyproducts or services or to purchase or otherwise obtain any software, components, parts, subassemblies or services;
(ivh) each Ibex Contract creating all licenses, sublicenses and other Contracts as to which the Company or involving any agency relationshipSubsidiary is a party and pursuant to which any Person is authorized to use any Company Intellectual Property, distribution arrangement other than Contracts with customers, distributors or franchise relationshipresellers for Company products;
(vi) each Ibex other than “shrink wrap” and similar generally available commercial end-user licenses to software that is not redistributed with or used in the development or provision of the Company products that have an individual acquisition cost of $25,000 or less, all licenses, sublicenses and other Contracts to which the Company or any Subsidiary is a party and pursuant to Table of Contents which the Company or any Subsidiary acquired or is authorized to use any Intellectual Property of a third party (other than a nondisclosure or confidentiality Contract relating to the acquisition, issuance or transfer of any securities);
(vij) each Ibex Contract relating all licenses, sublicenses and other Contracts pursuant to which the creation Company or any of its Subsidiaries has agreed to any Encumbrance restriction on the right of the Company or any of its Subsidiaries to use or enforce any Company Intellectual Property or pursuant to which the Company or any Subsidiary agrees to encumber, transfer or sell rights in or with respect to any asset of IbexCompany Intellectual Property;
(viik) each Ibex any Contract involving providing for the development of any software, content, technology or incorporating any guarantyIntellectual Property, any pledgeindependently or jointly, any performance by or completion bond, any indemnity for the Company or any surety arrangementSubsidiary;
(viiil) each Ibex any trust, loan agreement, indenture, note, bond, debenture or any other document or Contract creating or relating evidencing Indebtedness to any partnership or joint venture Person, any capitalized lease obligation, or any sharing commitment to provide any of revenuesthe foregoing, profitsor any agreement of guaranty, losses, costs indemnification or liabilitiesother similar commitment with respect to the obligations or Liabilities of any other Person;
(ixm) each Ibex any Contract relating to for the purchase disposition of any material portion of the assets or business (whether by merger, sale of stock, sale of assets or otherwise) of the Company or any product of its Subsidiaries;
(n) any Contract for the acquisition of the business or other asset capital stock of another party (whether by merger, sale of stock, sale of assets or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18otherwise);
(xo) each Ibex any Contract constituting concerning a joint venture, joint development or relating to a Government Contract other similar arrangement with one or Government Bidmore Persons;
(xip) any hedging, futures, options or other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practicesderivative Contract;
(xiiq) any Contract creating any obligation with respect to the payment of any severance, retention, bonus, success, change of control or other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) similar payment to any other Ibex Contract that contemplates or involves (A) Person, the payment or delivery acceleration of cash which is triggered by the Company entering into this Agreement, or the consummation of any of the transactions contemplated hereby or any subsequent transactions or events;
(r) any Contract for the employment of any director, officer, employee or consultant of the Company or any of its Subsidiaries or any other consideration type of Contract with any officer, employee or consultant of the Company or any Subsidiary that is not immediately terminable by the Company or such Subsidiary without cost or Liability, including any Contract requiring it to make a payment to any director, officer, employee or consultant on account of the Merger, any transaction contemplated by this Agreement or any Contract that is entered into in an amount connection with this Agreement;
(s) any Contract under which the Company or having a value any of its Subsidiaries has sold any products or provided any services pursuant to which the Company or any of its Subsidiaries has received aggregate payments in excess of $10,000 in the aggregate100,000 since March 21, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract2007;
(iit) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (any Contract with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract labor union or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet collective bargaining agreement or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing contract with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.its employees;
Appears in 1 contract
Sources: Merger Agreement (Vmware, Inc.)
Contracts. (a) Part 2.10 2.10(a) of the Disclosure Schedule identifies:
identifies each Company Contract that constitutes a "Material Contract." For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a "Material Contract": (i1) each Ibex a Company Contract relating that as of the Effective Time or thereafter obligates one or more of the Companies, or under which one or more of the Companies has rights, in an amount or of a value in excess of USD 50,000; (2) a Company Contract that as of the Effective Time has a remaining term of three years or more that may not be terminated without penalty by whichever of the Companies is a party to the employment of, or Contract within three months after the performance delivery of services by, any employee, consultant or independent contractor;
a termination notice by such Company; (ii3) each Ibex a Company Contract relating that both (A) is necessary to enable the Companies that are parties to the acquisitionContract or that are directly benefited by the Contract to conduct their respective businesses in the manner in which they are currently being conducted and (B) could not be replaced promptly on substantially the same terms without unreasonable effort or expense; (4) any Contract identified or referred to in Parts 2.9(a), transfer(c), use, development, sharing or license (d) and (f) of the Disclosure Schedule; (5) any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing as of the Effective Time or thereafter any restriction on Ibex's the right or ability of any of the Companies (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, Person or (C) to develop or distribute any technology;
; and (iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi6) any other Ibex Company Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's the Companies' past practices;
(xii) any other Ibex Contract that has a term practices not completely fulfilled by all parties thereto as of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material ContractsEffective Time.")
(b) Ibex has The Companies have delivered to Castelle Purchaser accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure ScheduleMaterial Contracts, including all amendments thereto. Except as disclosed in Part 2.10 2.10(b) of the Disclosure Schedule provides an accurate description of the terms of Schedule, each Ibex Material Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex the Companies that are parties thereto in accordance with its terms, subject to (i1) laws of general application relating to bankruptcy, insolvency and the relief of debtors, debtors and (ii2) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 2.10(c) of the Disclosure Schedule:
: (i1) Ibex none of the Companies has not violated or breached, or committed any default under, Breach under any Ibex Contract, Material Contract and, to the best of the knowledge of Ibex and the Designated Shareholders' Knowledge, no other Person has violated or breached, or committed any default underBreach under any Material Contract, any Ibex Contract;
except in either case for Breaches that individually or in the aggregate would not have a Material Adverse Effect on the Companies; (ii2) to the best of the knowledge of Ibex and the Designated Shareholders' Knowledge, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach Breach of any of the provisions of any Ibex Material Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Material Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, Material Contract or (D) give any Person the right to cancel, terminate or materially modify any Ibex Material Contract;
, except with respect to Material Contracts referred to in clauses (iiiA) through (C) where such Breach, default, exercise of a remedy or acceleration would not have a Material Adverse Effect on the Companies; (3) since December 31, 19921995, Ibex none of the Companies has not received any notice or other communication regarding (A) any actual or possible violation or breach Breach of, or default under, any Ibex Material Contract or (B) any actual or possible termination of any Material Contract; and
and (iv4) Ibex none of the Companies has not knowingly waived any of its material rights under any Material Contract.
(d) No Person is renegotiatingrenegotiating with the Companies, or has a the right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex any of the Companies under any Material Company Contract or any other material term or provision of any Material Company Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Contracts. (a) Part 2.10 2.10(a) of the Disclosure Schedule identifies:
identifies each Company Contract that constitutes a "Material Contract." For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a "Material Contract": (i1) each Ibex a Company Contract relating that as of the Effective Time or thereafter obligates one or more of the Companies, or under which one or more of the Companies has rights, in an amount or of a value in excess of DM 100,000; (2) a Company Contract that as of the Effective Time has a remaining term of three years or more that may not be terminated without penalty by whichever of the Companies is a party to the employment of, or Contract within three months after the performance delivery of services by, any employee, consultant or independent contractor;
a termination notice by such Company; (ii3) each Ibex a Company Contract relating that both (A) is necessary to enable the Companies that are parties to the acquisitionContract or that are directly benefited by the Contract to conduct their respective businesses in the manner in which they are currently being conducted and in the manner in which they are proposed to be conducted and (B) could not be replaced promptly on substantially the same terms without unreasonable effort or expense; (4) any Contract identified or referred to in Parts 2.9(a), transfer(b), use(c), development, sharing or license (d) and (f) of the Disclosure Schedule; (5) any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing as of the Effective Time or thereafter any restriction on Ibex's the right or ability of any of the Companies (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, Person or (C) to develop or distribute any technology;
; and (iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi6) any other Ibex Company Contract that was entered into outside the ordinary course of business or was inconsistent with Ibexthe Company's past practices;
(xii) any other Ibex Contract that has a term practices not completely fulfilled by all parties thereto as of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material ContractsEffective Date.")
(b) Ibex The Company has delivered to Castelle Parent accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure ScheduleMaterial Contracts, including all amendments thereto. To the best of the Knowledge of the Company and the Principal Shareholders, except as disclosed in Part 2.10 2.10(b) of the Disclosure Schedule provides an accurate description of the terms of Schedule, each Ibex Material Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex the Companies that are parties thereto in accordance with its terms, subject to (i1) laws of general application relating to bankruptcy, insolvency and the relief of debtors, debtors and (ii2) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 2.10(c) of the Disclosure Schedule:
: (i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii1) to the best of the knowledge Knowledge of Ibex the Company and the Designated Principal Shareholders, none of the Companies has committed any Breach under any Material Contract and no other Person has committed any Breach under any Material Contract, except in either case for Breaches that individually or in the aggregate would not have a Material Adverse Effect on the Company; (2) to the best of the Knowledge of the Company and the Principal Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach Breach of any of the provisions of any Ibex Material Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Material Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, Material Contract or (D) give any Person the right to cancel, terminate or materially modify any Ibex Material Contract;
, except with respect to Material Contracts referred to in clauses (iiiA) through (C) where such Breach, default, exercise of a remedy or acceleration would not have a Material Adverse Effect on the Company; (3) since December 31, 19921995, Ibex none of the Companies has not received any notice or other communication regarding (A) any actual or possible violation or breach Breach of, or default under, any Ibex Material Contract or (B) any actual or possible termination of any Material Contract; and
and (iv4) Ibex none of the Companies has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a the right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex any of the Companies under any Material Company Contract or any other material term or provision of any Material Company Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Contracts. (a) Part 2.10 Section 3.9(a) of the Company Disclosure Schedule identifiesidentifies each Contract to which any Acquired Corporation is a party, or by which it is bound, that constitutes a Material Contract as of the date of this Agreement. For purposes of this Agreement, each of the following (excluding any Employee Plan) to which any Acquired Corporation is a party or by which it is bound as of the date of this Agreement constitutes a “Material Contract”:
(i) each Ibex any Contract relating that is a settlement, conciliation or similar agreement between any Acquired Corporation and any Governmental Body and pursuant to which (A) an Acquired Corporation will be required after the employment of, date of this Agreement to pay any monetary obligations or the performance of services by, any employee, consultant (B) that contains material obligations or independent contractorlimitations on such Acquired Corporation’s conduct;
(ii) each Ibex any Contract relating to between any Acquired Corporation and any third Person (A) materially limiting the acquisition, transfer, use, development, sharing freedom or license right of any technology Acquired Corporation to engage in any line of business or to compete with any Proprietary Assetother Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by any Acquired Corporation, or (C) containing exclusivity obligations or otherwise materially limiting the freedom or right of any Acquired Corporation to sell, distribute or manufacture any products or services for any other Person;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business requires by its terms or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) is reasonably expected to require the payment or delivery of cash or other consideration to any Acquired Corporation in an amount or having a an expected value in excess of $10,000 100,000 for the fiscal years ending December 31, 2025 through December 31, 2027 or by any Acquired Corporation in the aggregate, or (B) the performance of services an amount having a an aggregate expected value in excess of $10,000 250,000 for the fiscal years ending December 31, 2025 through December 31, 2027 and in each case (A) which cannot be cancelled by such Acquired Corporation without penalty or further payment without more than ninety (90) days’ notice and (B) excluding commercially available off-the-shelf software licenses and Software-as-a-Service offerings, generally available patent license agreements, material transfer agreements, clinical trial agreements and non-exclusive outbound license agreements, and any In-bound License or Out-bound License;
(iv) any Contract under which any Acquired Corporation has obtained Indebtedness for borrowed money in an aggregate principal amount in excess of $100,000 (whether incurred, assumed, guaranteed or secured by any asset);
(v) any Contract between an Acquired Corporation and a third Person (A) for the disposition of any material assets or business of the Acquired Corporations or (B) for the acquisition of a material portion of the assets or business of any third Person (whether by merger, sale of stock or assets or otherwise), in each case (A) or (B) that contains continuing indemnities or other material obligations or any continuing “earn out” or other contingent payment obligations on the part of an Acquired Corporation;
(vi) any Contract between any Acquired Corporation and any third Person constituting a joint venture, collaboration, partnership or similar revenue sharing arrangement;
(vii) any Contract that by its express terms requires an Acquired Corporation, or any successor to, or acquirer of, an Acquired Corporation, to make any payment to another Person as a result of a change of control of such Acquired Corporation (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(viii) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the capital stock of an Acquired Corporation, the pledging of the capital stock or other equity interests of an Acquired Corporation or the issuance of any guaranty by an Acquired Corporation;
(ix) any Contract that is a license agreement pursuant to which an Acquired Corporation licenses from a third Person any material Intellectual Property Right (each an “In-bound License”) or licenses to a third Person any material Intellectual Property Right owned by an Acquired Corporation (each an “Out-bound License”) (provided, that, (a) In-bound Licenses shall exclude commercially available off-the-shelf software, clinical trial agreements, non-disclosure agreements, sponsored research agreements, service agreements or material transfer agreements, (b) Out-bound Licenses shall exclude non-exclusive outbound licenses contained in clinical trial agreements, manufacturing or supply agreements, non-disclosure agreements, sponsored research agreements, service agreements, material transfer agreements, or to other service providers, and (c) both In-Bound Licenses and Out-Bound Licenses shall exclude Contracts in which the license of Intellectual Property Rights is incidental to the performance of such Contract);
(x) any other Contract that is currently in effect and has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(xi) any Contract with any Affiliate (other than another Acquired Corporation), director, executive officer (as such term is defined in the aggregate. Exchange Act), Person holding 5% or more of the Shares, or, to the knowledge of the Company, any Affiliate (Contracts in other than the respective categories described in clauses "Company) or immediate family member of any of the foregoing; and
(i)" through "(xiii)" above are referred to in this Agreement as "Material Contractsxii) any Contract that is a lease of which the Leased Real Property is subject thereto.")
(b) Ibex As of the date of this Agreement, the Company has either delivered or made available to Castelle Parent an accurate and complete copies copy of all written Contracts identified each Material Contract or has publicly made available such Material Contract in Part 2.10 the Electronic Data Gathering, Analysis and Retrieval (E▇▇▇▇) database of the Disclosure ScheduleSEC. No Acquired Corporation nor, including all amendments thereto. Part 2.10 to the knowledge of the Disclosure Schedule provides an accurate description Company, any other party thereto is in material breach of, or material default under, any Material Contract and no Acquired Corporation, or to the knowledge of the terms Company, any other party to a Material Contract has taken or failed to take any action that with or without notice, lapse of each Ibex Contract that is not in written formtime or both would constitute a material breach of or material default under any Material Contract. Each Material Contract identified in Part 2.10 is, with respect to the Acquired Corporations and, to the knowledge of the Disclosure Schedule is Company, each other party thereto, a valid and binding agreement in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, except as such enforcement may be subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application applicability relating to bankruptcy, insolvency and the relief of debtorsor affecting creditors’ rights, and (ii) rules of law governing specific performanceby general equitable principles. Since January 1, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of 2022, the Disclosure Schedule:
(i) Ibex has Acquired Corporations have not violated or breached, or committed received any default under, written notice regarding any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a material violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract that has not since been cured, and there are no such violations, breaches or any other material term defaults that occurred or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary existed on or prior to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 19962022 that remain active or for which the Company could have any ongoing liability.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Contracts. (a) Part 2.10 3.9(a) of the Company Disclosure Schedule identifiesidentifies each Company Contract that constitutes a Material Contract as of the date of this Agreement. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Material Contract”:
(i) each Ibex any Company Contract relating constituting a Company Employee Agreement pursuant to which the employment Company is or may become obligated to (A) make any severance, termination, tax gross-up or similar payment to any Company Associate or any spouse or heir of any Company Associate except for severance, termination or similar payments required by applicable Legal Requirements that do not exceed $100,000 per beneficiary, (B) make any bonus, deferred compensation or similar payment (other than payments constituting base salary or commissions paid in the ordinary course of business) in excess of $250,000 to any Company Associate or (C) grant or accelerate the vesting of, or the performance of services byotherwise modify, any employee, consultant or independent contractorCompany Equity Award other than accelerated vesting provided in Company Equity Plans;
(ii) each Ibex any Company Contract relating (A) limiting the freedom or right of an Acquired Corporation to engage in any line of business, to make use of any material Company IP or to compete with any other Person in any location or line of business, or (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by an Acquired Corporation or exclusivity obligations or restrictions or otherwise limiting the acquisitionfreedom or right of an Acquired Corporation to sell, transfer, use, development, sharing distribute or license of manufacture any products or services or any technology or other assets to or for any Proprietary Assetother Person;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Company Contract that was entered into outside the ordinary course of business requires by its terms or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) is reasonably likely to require the payment or delivery of cash or other consideration by or to an Acquired Corporation in an amount or having a an expected value in excess of $10,000 250,000 in the aggregatefiscal year ending December 31, 2015 or in any fiscal year thereafter and cannot be cancelled by the Acquired Corporation without penalty or further payment without more than ninety (B90) days’ notice (other than payments for services rendered to the performance date), excluding non-exclusive outbound licenses, clinical trial agreements and material transfer agreements entered into in the ordinary course of services having a value business;
(iv) any Company Contract relating to Indebtedness of any Acquired Corporation in excess of $10,000 250,000 (whether incurred, assumed, guaranteed or secured by any asset);
(v) any Company Contract constituting a joint venture, partnership or limited liability corporation;
(vi) any Company Contract that requires or permits any Acquired Corporation, or any successor, to, or acquirer of any Acquired Corporation, to make any payment to another person as a result of a change of control of any Acquired Corporation (a “Change of Control Payment”), gives another Person a right to receive or elect to receive a Change of Control Payment or that gives rise to, triggers or accelerates the rights or obligations of any Acquired Corporation or another person as a result of a change of control of any Acquired Corporation;
(vii) any Company Contract that prohibits the payment of dividends or distributions in respect of the capital stock of any Acquired Corporation, the pledging of the capital stock or other equity interests of any Acquired Corporation or the issuance of any guaranty by any Acquired Corporation;
(viii) any In-bound License and any Out-bound License;
(ix) any Company Contract that is a settlement agreement, standstill agreement, co-existence agreement or consent-to-use agreement with respect to Intellectual Property Rights.
(x) any Company Contract that is a joint-development, collaboration, co-promotion or profit-sharing agreement, or a material services Contract for the research or development of the Products (other than non-exclusive outbound licenses, clinical trial agreements, and material transfer agreements entered into in the aggregate. ordinary course of business and not granting any commercial rights to any of the Products);
(Contracts xi) any Company Contract that is a Contract with any academic institution, research center or Governmental Body (or any Person working for or on behalf of any of the foregoing) (other than non-exclusive outbound licenses, clinical trial agreements, and material transfer agreements entered into in the respective categories described ordinary course of business and not granting any commercial rights to any of the Products);
(xii) any Company Contract with respect to the distribution, marketing, manufacturing or supply of any of the Products (other than non-exclusive outbound licenses, clinical trial agreements, and material transfer agreements entered into in clauses "(ithe ordinary course of business and not granting any commercial rights to any of the Products)" through ";
(xiii) any other Company Contract that is currently in effect and has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(xiv) any Company Contract with any Affiliate, director, executive officer (as such term is defined in the Exchange Act)" above are referred , holder of 5% or more of Company Common Stock or any of their Affiliates (other than the Company) or immediate family members (other than employee offer letters that can be terminated at will without severance obligations and Company Contracts pursuant to in this Agreement as "Material ContractsCompany Equity Awards); and
(xv) any Company Contract for the lease or sublease of any material real property.")
(b) Ibex As of the date of this Agreement, the Company has either delivered or made available to Castelle Parent or Parent’s Representatives an accurate and complete copies copy of all written Contracts identified each Material Contract or has publicly made available such Material Contract in Part 2.10 the Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) database of the Disclosure ScheduleSEC. Neither the applicable Acquired Corporation nor, including all amendments thereto. Part 2.10 to the knowledge of the Disclosure Schedule provides an accurate description Company, the other party is in material breach of or material default under any Material Contract and neither the applicable Acquired Corporation, nor, to the knowledge of the terms Company, the other party has taken or failed to take any action that with or without notice, lapse of each Ibex Contract that is not in written formtime or both would constitute a material breach of or material default under any Material Contract. Each Material Contract identified in Part 2.10 is, with respect to the applicable Acquired Corporation and, to the knowledge of the Disclosure Schedule is Company, the other party, a valid agreement, binding, and in full force and effect, and, to the best of . To the knowledge of Ibex and the Designated ShareholdersCompany, each Material Contract is enforceable by Ibex the applicable Acquired Corporation in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, debtors and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of . Since January 1, 2013, the Disclosure Schedule:
(i) Ibex has Acquired Corporations have not violated or breached, or committed received any default under, written notice regarding any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a or default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex Material Contract that has not received since been revoked or cured, except for violations or breaches that are not, individually or in the aggregate, reasonably likely to have a Material Adverse Effect. No Acquired Corporation has waived in writing any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, the waiver of which would have, either individually or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conductedaggregate, a Material Adverse Effect.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Contracts. (a) Part 2.10 3.10(a) of the Company Disclosure Schedule identifiesidentifies each Company Contract that constitutes a Material Contract as of the date of this Agreement. For purposes of this Agreement, other than any Company Contract that is (1) a non-disclosure agreement entered into (x) in the ordinary course of business consistent with past practice or (y) in connection with discussions, negotiations and transactions related to this Agreement or other Acquisition Proposals or (2) an Employee Plan, including any Company Employee Agreement, which shall be governed under Section 3.17, each of the following Company Contracts shall constitute a “Material Contract”:
(i) any Company Contract (A) limiting the freedom or right of the Company or any of its Affiliates, in any material respect, to engage in any line of business or to compete with any other Person in any location or line of business or (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by the Company or exclusivity obligations or restrictions limiting the freedom or right of the Company or any of its Affiliates to solicit or sell, distribute or manufacture any products or services or any technology or other assets to or for any other Person, including, in each Ibex Contract relating case of clauses (A) and (B), Company Contracts that, following the Closing, would reasonably be expected to the employment of, so limit or the performance impose such obligations on Parent or any of services by, any employee, consultant or independent contractorits Affiliates;
(ii) each Ibex Contract relating to the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Company Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated requires by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) its terms the payment or delivery of cash or other consideration by or to the Company in an amount or having a an expected value in excess of $10,000 2,000,000 in the aggregatefiscal year ending December 31, 2023 or in any single fiscal year thereafter;
(iii) any (A) Company Contract that would entitle any third party to receive a license or any other right, title or interest (including any option or other contingent right, or any covenant not to sue) with respect to Intellectual Property Rights of Parent or any of its Affiliates following the Closing Date or subject Parent or any of its Affiliates to any non-compete or other restrictive covenants following the Closing Date, (B) In-bound License, (C) Out-bound License, (D) Company Contract pursuant to which any material research or development activities related to the Product are conducted, or (E) any Company Contract (including a settlement or co-existence or other similar Company Contract) that grants a third party a license or right to use or restricts any Person from filing, registering, enforcing, disposing of or otherwise exploiting any Intellectual Property Rights related to the Product, in each case, other than any material transfer agreements, clinical trial agreements (but not clinical collaboration agreements), nondisclosure agreements, commercially available Software-as-a-Service offerings, off-the-shelf software licenses, service or supply agreements containing either no license or non-exclusive outbound licenses for the purpose of providing such services or supply to the Company, or other Contracts containing non-exclusive licenses incidental to the purpose of such Contract;
(iv) any Company Contract relating to the Company’s Indebtedness for borrowed money (whether incurred, assumed, guaranteed or secured by any asset) for a principal amount in excess of $2,000,000;
(v) any Contract (other than a Contract described in clause (iii)) that provides for the creation of any Encumbrance, other than a Permitted Encumbrance, with respect to any asset (including Company IP or other intangible assets) material to the conduct of the business of the Company as currently conducted;
(vi) any Company Contract constituting or relating to the formation, creation, operation, management or control of a joint venture, partnership or limited liability company;
(vii) any Company Contract that prohibits the payment of dividends or distributions in respect of the capital stock of the Company, the pledging of the capital stock or other equity interests of the Company or prohibits the issuance of any guaranty by the Company;
(viii) any Company Contract with any Affiliate, director, executive officer (as such term is defined in the Exchange Act), holder of 5% or more of Shares or, to the knowledge of the Company, any of their Affiliates (other than the Company) or immediate family members (other than offer letters that can be terminated at will without severance obligations and Company Contracts pursuant to Company Stock Awards);
(ix) any Company Contract for the lease, sublease or sub-sublease of any real property;
(x) any Company Contract (A) relating to the disposition or acquisition by the Company after the date of this Agreement of assets with a fair market value in excess of $2,000,000 outside of the ordinary course of business, or (B) pursuant to which the performance of services having Company will acquire any ownership interest in any other Person or other business enterprise with a value of greater than $2,000,000;
(xi) any Company Contract that contains a put, call, right of first refusal or similar right pursuant to which the Company could be required to purchase or sell, or offer for purchase or sale, as applicable, any (A) equity interests of any Person or (B) assets (excluding ordinary course commitments to purchase goods, products and off-the-shelf software) or businesses for an amount in excess excess, in the aggregate with respect to such Company Contract, of $10,000 2,000,000;
(xii) any Company Contract with (A) a sole-source supplier or (B) any supplier not covered by clause (A) that involved the payment of more than $1,000,000 in the aggregate. Company’s last fiscal year;
(Contracts xiii) any Company Contract with any Governmental Body;
(xiv) any Company Contract (A) other than entered into in the respective categories described ordinary course of business, the primary purpose of which is to provide for indemnification or guarantee of the obligations of any other Person that would be material to the Company and (B) that indemnifies any director or executive officer of the Company (other than any indemnification provisions set forth in clauses "the certificate of incorporation or bylaws or comparable governing documents of the Company);
(ixv) any hedging, swap, derivative or similar Company Contract;
(xvi) notwithstanding any exclusion set forth in the second sentence of Section 3.10(a)" through ", any collective bargaining agreement or other Contract with any labor union, labor organization, or works council (xiiieach a “Labor Agreement”)" above are referred ;
(xvii) any Company Contract that is a settlement, conciliation or similar agreement pursuant to in which the Company is to pay consideration of more than $200,000 after the date of this Agreement or that imposes any other material obligation upon the Company after the date of this Agreement; and
(xviii) any other Company Contract that is currently in effect and has been filed (or is required to be filed) by the Company as "Material Contractsan exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act.")
(b) Ibex As of the date of this Agreement, the Company has either delivered or made available to Castelle Parent or Parent’s Representatives an accurate and complete copies copy of each Material Contract including all written Contracts identified in Part 2.10 amendments, waivers and changes thereto. Neither the Company nor, to the knowledge of the Disclosure ScheduleCompany, including all amendments thereto. Part 2.10 the other party, is in material breach of or material default under any Material Contract and, neither the Company, nor, to the knowledge of the Disclosure Schedule provides an accurate description Company, the other party, has taken or failed to take any action that with or without notice, lapse of time or both would constitute a material breach of or material default under any Material Contract. Each Material Contract is, with respect to the Company and, to the knowledge of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of Company, the Disclosure Schedule is other party, a valid agreement, binding, and in full force and effect, and, to the best of . To the knowledge of Ibex and the Designated ShareholdersCompany, each Material Contract is enforceable by Ibex the Company in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, debtors and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 . Since January 1, 2023 through the date of this Agreement, the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex Company has not received any written notice or other communication (i) regarding any actual or possible violation or breach ofor default under any Material Contract that has not since been cured or (ii) from any Person that such Person intends to terminate, or default undernot renew, any Ibex Material Contract; and
(iv) Ibex , in each case, except for violations, breaches, defaults, terminations or nonrenewal that are not, individually or in the aggregate, reasonably expected to have a Material Adverse Effect. The Company has not waived in writing any of its material rights under any Material Contract.
(d) No Person is renegotiating, the waiver of which would have, either individually or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conductedaggregate, a Material Adverse Effect.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (RayzeBio, Inc.)
Contracts. (a) Part 2.10 Except for this Agreement, the Company Contracts disclosed in and filed as exhibits to the Company SEC Documents, and the Company Contracts disclosed on Section 3.11(a) of the Company Disclosure Schedule identifiesSchedule, there is no Company Contract that as of the date of this Agreement is:
(i) a Company Contract (A) limiting the freedom or right of an Acquired Corporation to compete with any other Person in any location or line of business; (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by an Acquired Corporation or exclusivity obligations or restrictions; or (C) containing exclusivity obligations or otherwise purports to materially limit the freedom or right of any Acquired Corporation to sell, distribute or manufacture any products or services for any other Person, except in the case of each Ibex Contract relating of clauses (A) through (C) for such limitations, terms, conditions or obligations that are not material to the employment ofAcquired Corporations, or the performance of services by, any employee, consultant or independent contractortaken as a whole;
(ii) each Ibex Contract relating to the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Company Contract that was entered into outside the ordinary course of business requires by its terms or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) is reasonably likely to require the payment or delivery of cash or other consideration by or to an Acquired Corporation in an amount or having a an expected value in excess of $10,000 5,000,000 in the fiscal year ending December 31, 2021 or in any fiscal year thereafter and cannot be cancelled by the Acquired Corporation without penalty or further payment without more than sixty (60) days’ notice (other than payments for services rendered to the date of cancellation), excluding nonexclusive outbound licenses which are not Out-bound Licenses, nonexclusive inbound licenses which are not In-bound Licenses, and clinical trial agreements entered into in the ordinary course of business;
(iii) a Company Contract relating to Indebtedness for borrowed money of any Acquired Corporation with a principal amount in excess of $1,000,000 (whether incurred, assumed, guaranteed or secured by any asset);
(iv) a Company Contract that prohibits the payment of dividends or distributions in respect of the capital stock of any Acquired Corporation, the pledging of the capital stock or other equity interests of any Acquired Corporation or the issuance of any guaranty by any Acquired Corporation;
(v) a Company Contract creating a joint venture, collaboration, partnership, limited liability company or strategic alliance, in each case that is material to the Company;
(vi) an In-bound License and any Out-bound License;
(vii) a Company Lease;
(viii) a Company Contract related to any disposition or acquisition of material assets or a material business of the Acquired Corporations that contains continuing indemnitees (except for indemnities entered into the ordinary course of business and pursuant to which the Acquired Corporations have not incurred any material liabilities), or other continuing “earn out”, milestones, royalties or other continuing contingent payment obligations;
(ix) a material Company Contract that is a supply, manufacturing or contract manufacturing Contract;
(x) a Company Contract with any Governmental Body pursuant to which such Governmental Body procures or supplies services from the Acquired Corporations or provides a grant to the Acquired Corporations, with a principal amount in excess of $5,000,000; or
(xi) any other Company Contract that is currently in effect and has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act. Each such Contract described in clauses (i) through (xi) above is referred to herein as a “Material Contract.”
(b) As of the date of this Agreement, the Company has either delivered or made available to Parent or Parent’s Representatives or has publicly made available (subject to necessary redactions) an accurate and complete copy of each Material Contract. Neither the applicable Acquired Corporation nor, to the knowledge of the Company, the other party thereto, is in breach of or default under any Material Contract, except in any such event as would not have, and would not reasonably be expected to have, individually or in the aggregate, or (B) a Material Adverse Effect. Each Material Contract is, with respect to the performance of services having a value in excess of $10,000 in applicable Acquired Corporation and, to the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 knowledge of the Disclosure ScheduleCompany, including all amendments the other party thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is , a valid agreement, binding, and in full force and effect, andexcept as would not have, and would not reasonably be expected to have, individually or in the best of aggregate, a Material Adverse Effect. To the knowledge of Ibex and the Designated ShareholdersCompany, each Material Contract is enforceable by Ibex the applicable Acquired Corporation in accordance with its terms, except as would not have, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and except as such enforcement may be subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application applicability relating to bankruptcy, insolvency and the relief of debtorsor affecting creditor’s rights, and (ii) rules of law governing specific performance, injunctive relief and other by general equitable remedies.
(c) Except as set forth in Part 2.10 principles. As of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best date of the knowledge of Ibex and the Designated Shareholdersthis Agreement, no other Person Acquired Corporation has violated or breached, or committed waived in writing any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, the waiver of which would have, or has a right pursuant would reasonably be expected to the terms of any Ibex Contract to renegotiatehave, any amount paid individually or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conductedaggregate, a Material Adverse Effect.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Constellation Pharmaceuticals Inc)
Contracts. (a) Part 2.10 Except as set forth on Schedule 2.8, none of Seller or its Affiliates is a party to or bound by any oral or written contract, lease, license, indenture, agreement, commitment or any other legally binding arrangement, that is used, held for use or intended for use, primarily in, or that arises primarily out of, the operation or conduct of the Disclosure Schedule identifiesBusinesses and under which Purchaser will have any liability or other obligation after the Closing ("Contracts") and that is:
(i) each Ibex Contract relating or contains a covenant not to compete or covenants that in any way purport to restrict the employment of, business activity of Seller and/or its Affiliates or limit the performance freedom of services by, Seller and/or its Affiliates to engage in any employee, consultant of the Businesses or independent contractorto compete with any Person or otherwise restricts the rights of Seller and/or its Affiliates to use or disclose any information in its or their possession;
(ii) each Ibex a Contract relating to involving payment by Seller and/or any of its Affiliates of more than [REDACTED] or extending for a term more than [REDACTED] from the acquisitiondate of this Agreement (unless terminable without payment or penalty upon no more than [REDACTED] notice), transfer, use, development, sharing or license other than purchase orders entered into in the ordinary course of any technology or any Proprietary AssetBusiness consistent with past practice;
(iii) each Ibex a Contract imposing involving the obligation of Seller and/or any restriction on Ibex's right of its Affiliates to deliver products or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for payment of more than [REDACTED] or extending for a term more than [REDACTED] from the date of this Agreement (unless terminable without payment or penalty upon no more than [REDACTED] notice), other than sales orders entered into in the ordinary course of any other Person or to transact business or deal in any other manner Business consistent with any other Person, or (C) develop or distribute any technology;past practice; or
(iv) each Ibex a Contract creating for the sale of any Acquired Asset (other than inventory sales in the ordinary course of business) or involving the grant of any preferential rights to purchase any Acquired Asset or requiring the consent of any party to the transfer thereof or that creates a relationship with any distributor, dealer, manufacturer's representative or sales agency relationshipor that provides for payments to or by any Person based on sales, distribution arrangement purchases, or franchise relationship;profits, other than direct payments for goods; or
(v) each Ibex Contract relating to the acquisitiona lease, issuance installment or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guarantyconditional sale agreement, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or Contract affecting the ownership of, leasing of, title to, or the performance use of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term interest in any Acquired Assets (except personal property leases and installment or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.conditional
Appears in 1 contract
Contracts. (a) Part 2.10 3.10(a) of the Company Disclosure Schedule identifiesidentifies each Company Contract that constitutes a Material Contract as of the date of this Agreement. For purposes of this Agreement, each of the following Company Contracts shall be deemed to constitute a “Material Contract”:
(i) each Ibex any Company Contract relating (A) containing any exclusivity obligations or otherwise limiting the freedom or right of an Acquired Company (or, to the employment ofactual knowledge of the Company, immediately after the Closing, Parent or its Affiliates) to engage in any line of business, to make use of any material Company IP or to conduct business or compete with any other Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by an Acquired Company or (C) granting any right of first refusal, right of first offer, right of negotiation, option or similar right with respect to any equity interests or material assets or business of an Acquired Company (or, to the performance actual knowledge of services bythe Company, any employeeimmediately after the Closing, consultant Parent or independent contractorits Affiliates);
(ii) any Company Contract (except material transfer agreements, sponsored research agreements and non-material services agreements, in each Ibex Contract relating to the acquisitioncase, transfer, use, development, sharing or license of any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside in the ordinary course of business or was inconsistent consistent with Ibex's past practices;
(xiipractice) any other Ibex Contract that has a term of more than 60 days and that may not be terminated requires by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) its terms the payment or delivery of cash or other consideration by or to an Acquired Company in an amount or having a an expected value in excess of $10,000 500,000 in the aggregatecurrent or immediately subsequent fiscal year, except to the extent terminable without penalty by an Acquired Company on 60 days’ or less notice (provided, that penalty shall not include requirements to pay costs and expenses in connection with the termination of such agreements consisting of reimbursement of expenses incurred and reasonable wind-down costs or payments for services rendered to the date);
(iii) any Company Contract relating to Indebtedness (whether incurred, assumed, guaranteed or secured by any asset) of any Acquired Company or the granting of Encumbrances over the property or assets of the Acquired Companies (other than Permitted Encumbrances) (except nondisclosure agreements entered into in the ordinary course of business);
(iv) any Company Contract constituting or relating to a joint venture, partnership, or limited liability corporation for the sharing of profits and losses, collaboration, strategic alliance or similar arrangement (except nondisclosure agreements entered into in the ordinary course of business);
(v) any Company Contract under which any Acquired Company has made any loan, extension of credit or capital contribution to, or other investment in, any Person (other than an Acquired Company and other than investments in marketable securities in the ordinary course of business consistent with past practice);
(vi) any Company Contract (A) that relates to the research, testing, clinical trial, development, commercialization, manufacture, marketing, importation, exportation, sale, distribution, supply or license of any product or product candidate of an Acquired Company or (B) under which clinical, pre-clinical or non-clinical data relating to any product or product candidate of an Acquired Company is or may be generated, in either case ((A) or (B)), which is material to the performance business of any Acquired Company or relates to baxdrostat (CIN-107), except for, in each case, material transfer agreements, sponsored research agreements, nondisclosure agreements, non-material services having agreements or commercially available Software-as-a-Service offerings or other licenses to commercially available off-the-shelf software licensed pursuant to a value standard “off-the-shelf” or “shrink wrap” or “click wrap” agreement, in each case, entered into in the ordinary course of business;
(vii) any Company Contract that is an In-bound License or Out-bound License, including the Roche License;
(viii) any Company Contract that prohibits, limits or requires the payment of dividends or distributions in respect of the capital stock of any Acquired Company, the pledging of the capital stock or other equity interests of any Acquired Company or the issuance of any guaranty by any Acquired Company;
(ix) any Company Contract that relates to the voting, disposition or registration of any securities of the Acquired Companies or payment of tax receivables to any current or former security holder of the Acquired Companies or other Person, or provides any Person the right to elect, or to designate or nominate for election, a director of any of the Acquired Companies and any stockholders’, investor rights, or similar Company Contracts with respect to any securities;
(x) any Company Contract with any former or current Affiliate, director, executive officer (as such term is defined in the Exchange Act), holder of 5% or more of the Shares or, to the knowledge of the Company, any of their Affiliates (other than the Company) or immediate family members providing for annual payments in the fiscal year ending December 31, 2021 in excess of $10,000 200,000 (other than the Company Equity Plans and the Company ESPP listed on Part 3.17(g) of the Company Disclosure Schedule, offer letters that can be terminated at will without severance obligations and Company Contracts pursuant to Company Equity Awards);
(xi) any Company Contract with a third party under which any Acquired Company obtains the services of temporary or leased employees;
(xii) any Company Contract with a third-party professional employer organization;
(xiii) any collective bargaining agreement or other Company Contract with any labor union, works council or similar employee representative entity;
(xiv) any Company Lease;
(xv) any Company Contract that provides for the acquisition, disposition, license or transfer of any business, stock or ownership interest in, or material assets of any Person (whether by merger, sale of stock, sale of assets or otherwise) (A) after the date of this Agreement (other than the sale of inventory in the aggregate. ordinary course of business consistent with past practice) or (Contracts B) prior to the date of this Agreement, with obligations remaining to be performed or liabilities continuing after the date of this Agreement (other than indemnification obligations under which there are no pending claims or other provisions that customarily survive such performance), except for in each case, licenses in connection with material transfer agreements, sponsored research agreements, nondisclosure agreements, non-material services agreements or non-exclusive out-bound licenses with clinical trial sites, subcontractors and vendors entered into in the respective categories described ordinary course of business where the license is incidental to and not material to performance under the applicable agreement;
(xvi) any Company Contract with any Governmental Body;
(xvii) any hedging, swap, derivative or similar Company Contract; and
(xviii) any other Company Contract that is currently in clauses "effect and has been filed (i)" through "(xiii)" above are referred or is required to in this Agreement be filed) by the Company as "Material Contractsan exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act.")
(b) Ibex As of the date of this Agreement, the Company has delivered made available to Castelle accurate Parent and Parent’s Representatives a copy of each written Material Contract together with all material amendments, waivers or other changes thereto, and a correct and complete copies written summary setting forth the terms and conditions of all written Contracts identified in Part 2.10 each oral Material Contract. Neither the applicable Acquired Company nor, to the knowledge of the Disclosure ScheduleCompany, including all amendments thereto. Part 2.10 the other party thereto is in material breach of or material default under any Material Contract and, neither the applicable Acquired Company, nor, to the knowledge of the Disclosure Schedule provides an accurate description Company, the other party thereto has taken or failed to take any action that with or without notice, lapse of time or both would constitute a material breach of or material default under any Material Contract. Each Material Contract is, with respect to the Company and, to the knowledge of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of Company, the Disclosure Schedule is valid other parties thereto, legal, valid, binding and in full force and effect, . Each Material Contract is enforceable against and, to the best knowledge of the knowledge of Ibex and the Designated ShareholdersCompany, each Material Contract is enforceable by Ibex by, the applicable Acquired Company in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, debtors and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 . Since January 1, 2020 through the date of this Agreement, the Disclosure Schedule:
(i) Ibex Acquired Companies have not received any written notice regarding any material violation or breach or default under the Roche License, whether cured or not, or any material violation or breach or default under any other Material Contract that has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurredsince been cured, and no circumstance or condition existsparty to any Material Contract has given any written notice of termination, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation cancellation or breach of, or default under, dispute with respect to any Ibex Material Contract or that it intends to terminate or cancel and Material Contract; and
(iv) Ibex . No Acquired Company has not waived in writing any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Contracts. (a) Part 2.10 Section 3.9(a) of the Company Disclosure Schedule identifies, as of the date of this Agreement, each Contract (other than an Employee Plan) to which any Acquired Corporation is a party, or by which it is bound, that constitutes a Material Contract as of the date of this Agreement. For purposes of this Agreement, each of the following to which any Acquired Corporation is a party or by which it is bound constitutes a “Material Contract”:
(i) each Ibex any Contract relating that is a settlement, conciliation or similar Contract with or approved by any Governmental Body (A) pursuant to which an Acquired Corporation will be required after the employment of, date of this Agreement to pay any monetary obligations or the performance of services by, any employee, consultant (B) that contains continuing material obligations or independent contractorlimitations on such Acquired Corporation’s conduct;
(ii) each Ibex any Contract relating (A) materially limiting the right of any Acquired Corporation (or, following the Closing, Parent or any of its Affiliates) to engage in any line of business or to compete with any other Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by any Acquired Corporation or (C) containing exclusivity obligations or otherwise limiting the acquisitionright of any Acquired Corporation (or, transferfollowing the Closing, useParent or any of its Affiliates) to solicit, developmentsell, sharing distribute or license of manufacture any products or services or any technology or other assets to or for any Proprietary Assetother Person;
(iii) each Ibex any Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Personthat requires, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationshipis reasonably expected to require, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisitionby its terms, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration to or by any Acquired Corporation in an amount in excess of $500,000 in any fiscal year commencing with fiscal year 2025, and in each case that cannot be canceled by any Acquired Corporation without penalty or having further payment at no more than ninety (90) days’ notice;
(iv) any Contract relating to Indebtedness in excess of $500,000 (whether incurred, assumed, guaranteed or secured by any asset) of any Acquired Corporation, other than loans to direct or indirect wholly owned Subsidiaries, in each case in the ordinary course of business;
(v) any Contract between an Acquired Corporation and a third Person relating to the disposition or acquisition of assets (other than raw materials, components or finished products acquired in the ordinary course of business or finished products disposed of in the ordinary course of business) with a fair market value in excess of $10,000 500,000, whether by merger, sale of stock or assets or otherwise, and that contains continuing indemnities or other material obligations or any continuing “earn-out” or other contingent payment obligation on the part of an Acquired Corporation;
(vi) any Contract between any Acquired Corporation and any third Person constituting or relating to the formation, creation, operation, management or control of a joint venture, collaboration, partnership or similar revenue sharing arrangement;
(vii) any Contract that by its express terms requires an Acquired Corporation, or any successor to, or acquirer of, an Acquired Corporation, to make any payment to another Person as a result of a change of control of such Acquired Corporation (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(viii) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the capital stock of an Acquired Corporation, the pledging of the capital stock or other equity interests of an Acquired Corporation or the issuance of any guaranty by an Acquired Corporation;
(ix) any Contract pursuant to which any Acquired Corporation (A) is granted any license or other right or immunity (whether present or contingent, including any sublicense, option, co-existence right, right of first refusal or other preferential right, non-assert or covenant not to be sued) under any Intellectual Property Right that is material to the Acquired Corporations, taken as a whole, other than to generally commercially available software or technology available on nondiscriminatory pricing terms or (B) grants any license or other right or immunity (whether present or contingent, including any sublicense, option, co-existence right, right of first refusal or other preferential right, non-assert or covenant not to sue) under any Intellectual Property Right that is material to the Acquired Corporations, taken as a whole, other than non-exclusive licenses (1) pursuant to clinical trial agreements or supply agreements in which clinical trials or supply services are being performed for an Acquired Corporation (where such license is granted to enable the performance of such services), and other similar agreements, in each case, that are entered into by an Acquired Corporation in the ordinary course of business and (2) where the grant of rights to use any Intellectual Property Rights are incidental, and not material to, any performance under each such agreement;
(x) any Contract that is a distribution or manufacturing Contract;
(xi) any Collective Bargaining Agreement or other Contract with a labor union, works council, labor organization, or other employee representative;
(xii) any Contract that contains a put, call, right of first refusal or similar right pursuant to which any Acquired Corporation could be required to purchase or sell, or offer for purchase or sale, as applicable, any (A) equity interests of any Person or (B) assets (excluding commitments to purchase goods and products and commercially available off-the-shelf software licenses and Software-as-a-Service offerings, in each case, entered into in the ordinary course of business) or businesses for an amount in excess, in the aggregate, of $500,000;
(xiii) any Contract that is a Lease;
(xiv) any Contract with (A) a sole-source supplier or (B) any supplier not covered by clause (A) that involved the performance payment of services having more than $500,000 in the Company’s last fiscal year;
(xv) any Contract with any Governmental Body, other than any sponsored research agreements or clinical trial site agreements entered into in the ordinary course of business;
(xvi) any Contract (other than an Employee Plan) with any Affiliate (other than a value Subsidiary of the Company), director or executive officer of the Company (as such term is defined in the Exchange Act), Person holding 5% or more of the Shares, or, to the knowledge of the Company, any Affiliate (other than the Company) or, to the knowledge of the Company, immediate family member of any of the foregoing;
(xvii) any Contract that indemnifies any director or executive officer of the Company or any Acquired Corporation (other than any indemnification provisions set forth in the certificate of incorporation or bylaws or comparable governing documents of the Company or any Acquired Corporation);
(xviii) any Contract that requires any capital commitment or capital expenditure (or series of capital expenditures) by the Company or any Acquired Corporation after the date of this Agreement in an amount in excess of $10,000 500,000 in the aggregate. ; and
(Contracts xix) any other Contract that is currently in effect and has been filed (or is required to be filed) by the respective categories described in clauses "(i)" through "(xiii)" above are referred Company as an exhibit pursuant to in this Agreement as "Material ContractsItem 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act.")
(b) Ibex As of the date of this Agreement, the Company has delivered to Castelle accurate Parent true, correct and complete copies of each Material Contract (together with all written Contracts identified in Part 2.10 legally binding amendments, modifications, schedules or supplements thereto). No Acquired Corporation nor, to the knowledge of the Disclosure ScheduleCompany, including all amendments thereto. Part 2.10 any other party is in material breach of, or material default under, any Material Contract; (ii) there exists no event or circumstances with respect to any Acquired Corporation or, to the knowledge of the Disclosure Schedule provides an accurate description of the terms of each Ibex Company, any other party to a Material Contract that with or without notice, lapse of time or both would constitute a material breach of or material default under any Material Contract or result in a termination right thereof or would cause or permit the acceleration of or other changes of or to any material right or obligation or the loss of any material benefit thereunder; and (iii) each Material Contract is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is a valid and binding agreement in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, except as such enforcement may be subject to (i) laws of general application relating to bankruptcythe Enforceability Exceptions. Since January 1, insolvency and 2022, the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has Acquired Corporations have not violated or breached, or committed received any default under, any Ibex Contract, andwritten or, to the best knowledge of the Company, oral notice regarding any violation or breach or default under any Material Contract that has not since been cured. As of the date of this Agreement, no Acquired Corporation has received any written or, to the knowledge of Ibex and the Designated ShareholdersCompany, no other Person has violated or breachedoral notice from any third party to any Material Contract that such party intends to terminate, not renew, repudiate, modify, or committed accelerate any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights obligation under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (OptiNose, Inc.)
Contracts. (a) Part 2.10 Schedule 5.10(a) sets forth a list, as of the Disclosure Schedule identifiesdate hereof, of all Contracts (other than Benefit Plans, Personal Property Leases, Leases, IP Licenses, and student enrollment agreements, which shall not constitute Material Contracts) to which Seller is a party and to which their respective assets or properties are subject or bound as of the date hereof and which constitutes an Acquired Contract (collectively, such Contracts referred to herein as the “Material Contracts”), which:
(i) each Ibex Contract relating Seller has been required to make minimum aggregate payments under of more than $20,000 during the employment offiscal year ended June 30, 2018 or which Seller reasonably anticipate will, in accordance with the performance terms of services bysuch Contract, any employee, consultant involve aggregate payments by Seller in excess of $20,000 within the twelve (12) month period from and after the date hereof (other than purchase orders entered into in the Ordinary Course of Business) and that is not terminable upon 60 days' or independent contractorless notice;
(ii) each Ibex Contract relating Seller has received minimum aggregate payments under of more than $20,000 during the fiscal year ended June 30, 2018 or which Seller reasonably anticipate will, in accordance with the terms of such Contract, involve aggregate payments to Seller in excess of $20,000 within the acquisition, transfer, use, development, sharing twelve (12) month period from and after the date hereof (other than purchase orders entered into in the Ordinary Course of Business) and that is not terminable upon 60 days' or license of any technology or any Proprietary Assetless notice;
(iii) each Ibex Contract imposing any restriction on Ibex's right are partnership, joint venture or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technologysimilar agreements;
(iv) each Ibex Contract creating are Contracts regarding acquisitions or involving dispositions of a material portion of the assets of the SBBC System that contain any agency relationship, distribution arrangement ongoing or franchise relationshipcontinuing obligations thereunder (including any indemnification obligations);
(v) each Ibex Contract relating to are Contracts that contain non-competition, exclusivity or other similar restrictive provisions restricting the acquisition, issuance or transfer operations of the SBBC System in any securitiesrespect following the Closing;
(vi) each Ibex Contract relating to involve any standstill or similar arrangement in effect on the creation of any Encumbrance with respect to any asset of Ibexdate hereof;
(vii) each Ibex Contract involving grant to any third party a right of first refusal, first offer or incorporating first negotiation of any guaranty, kind related to the SBBC System to acquire any pledge, any performance or completion bond, any indemnity or any surety arrangementAcquired Assets;
(viii) each Ibex Contract creating Seller has granted any exclusive marketing, sales representative relationship, franchising consignment or relating distribution right to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilitiesthird party;
(ix) each Ibex Contract relating to are collective bargaining agreements or other Contracts with any labor union or association representing any SBBC System Employee;
(x) are Contracts with any Governmental Authority;
(xi) are Contracts for the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practicesreal property;
(xii) are Contracts relating to any Indebtedness with a principal amount in excess of $50,000;
(xiii) are Contracts that are a mortgage, security agreement, capital lease or similar agreement that creates or grants an Encumbrance, other Ibex Contract than a Permitted Encumbrance, on any Acquired Assets;
(xiv) are Contracts, or a series of related Contracts, providing for capital expenditures in excess of $20,000;
(xv) are Contracts under which Seller has made, or that has obligates Seller to make, a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇loan or capital contribution to, or investment in, any Person; and
(xiiixvi) are Contracts with any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contractsaffiliate inquiry providers.")
(b) Ibex has delivered With respect to Castelle accurate each Material Contract, neither Seller, on one hand, nor, to the knowledge of Seller, any other party to any such Material Contract, on the other hand, is in material breach thereof or material default thereunder and complete copies there does not exist any event which, with the giving of all written Contracts identified in Part 2.10 notice or the lapse of time, would constitute such a material breach or default by Seller or, to the Disclosure Scheduleknowledge of Seller, including all amendments theretoany other party. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of Furthermore, with respect to each Ibex Material Contract, (i) such Material Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, constitutes a valid and binding obligation of Seller and, to the best of the knowledge of Ibex Seller, each other party thereto, and the Designated Shareholders, is enforceable by Ibex against each of them in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and except for the relief of debtors, and Equitable Exceptions; (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no occurred or circumstance or condition exists, that exists which (with or without notice or lapse of timetime or both) willwould constitute a material breach of or default under, would cause or permit the termination or cancellation of, would cause any loss of benefit under, or could reasonably be expected to, (A) result in a violation or breach of would give rise to any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex obligation under, such Material Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
; (iii) since December 31, 1992, Ibex Seller has not provided to or received from any counterparty thereto any written notice or other communication regarding any actual or possible violation alleged breach of or default under (or of any condition which with the passage of time or the giving of notice or both would cause a breach of, of or default under, any Ibex ) such Material Contract; and
and (iv) Ibex Seller has not waived provided to or received from any of its material rights under counterparty thereto any Material Contract.
(d) No Person is renegotiatingwritten notice announcing, contemplating or has a right pursuant threatening to, and to the terms knowledge of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice Seller no counterparty thereto intends to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of : (A) terminate (other than Material Contracts that are expiring pursuant to their terms) or not renew such Material Contract, (B) seek the execution, delivery renegotiation of performance of this Agreement or such Material Contract in any of the other agreements referred to in this Agreementmaterial respect, or (BC) the consummation substitute performance under such Material Contract in any material respect. Seller has delivered or made available to Purchaser true, correct and complete copies of the Merger or any of the other transactions contemplated by this Agreementall written Material Contracts (including all amendments thereto).
Appears in 1 contract
Sources: Asset Purchase Agreement
Contracts. (a) Part 2.10 Section 3.15 of the Company Disclosure Schedule identifies:lists the following Contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries, or any of their respective properties or assets, is bound (each a “Material Contract”):
(i) each Ibex Contract any loan or credit agreement, indenture, note, debenture, mortgage, pledge, security agreement or capital lease or any surety or guarantee relating to the employment of, any Indebtedness or the performance of services by, any employee, consultant or independent contractorGuarantee;
(ii) each Ibex any Contract relating (other than a purchase order for supplies, raw materials or inventory entered into in the ordinary course of business consistent with past practice and that does not contain any minimum purchase or similar requirement) that by its terms calls for, or would reasonably be expected to result in aggregate payments by or to the acquisition, transfer, use, development, sharing or license of any technology Company or any Proprietary Assetof its Subsidiaries under such Contract of more than $125,000 per annum;
(iii) each Ibex any Contract imposing any restriction that is filed with the SEC under Item 6.01 of Regulation S-K of the Exchange Act or disclosed on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technologya Current Report on Form 8-K;
(iv) each Ibex any Contract creating that by its terms materially restricts the conduct of any current or involving future line of business by the Company or any agency relationshipof its Subsidiaries or Affiliates, distribution arrangement or, after the Effective Time, would by its terms materially restrict the conduct of any current or franchise relationshipfuture line of business by Parent or any of its Subsidiaries or Affiliates or would prevent any of them from entering into any territory, market or field, or any Contract that includes a grant to any Person of most-favored nation rights or similar rights;
(v) each Ibex any Contract relating that provides for or otherwise relates to the acquisitiona material joint venture, issuance partnership, strategic alliance or transfer of any securitiessimilar arrangement;
(vi) each Ibex any Contract relating to involving the creation acquisition or disposition, directly or indirectly (by merger or otherwise), of a material amount of the assets of any Encumbrance Person, business or of capital stock or other equity interests that (A) is currently in effect or (B) pursuant to which the Company has continuing indemnification, “earn-out” or other liabilities or obligations (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with respect to any asset of Ibexpast practices);
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangementCompany License;
(viii) (A) any employment or consulting agreement or bonus agreement, (B) any Contract providing for the payment, increase or vesting of any material benefits or compensation in connection with the transactions contemplated hereby, (C) any Contract providing for change of control benefits, severance or a similar arrangement and (D) any Contract providing for indemnification, in each Ibex Contract creating or relating to of clauses (A) through (D), with any partnership or joint venture executive officer or any sharing other employee of revenuesthe Company or any of its Subsidiaries earning a base annual salary in excess of $125,000, profits, losses, costs or liabilitiesa member of the Company’s or any of its Subsidiaries’ board of directors or similar governing body;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18)Real Property Lease;
(x) each Ibex any Contract constituting that prohibits payment of dividends or relating to a Government Contract distributions in respect of the capital stock or Government Bid;equity interests of the Company or any of its Subsidiaries, prohibits the pledging of the Company’s or any of its Subsidiaries’ capital stock or equity interests, or prohibits the issuance of guarantees by the Company or any of its Subsidiaries; and
(xi) any other Ibex material Contract that was not entered into outside in the ordinary course of business or was inconsistent consistent with Ibex's past practices;. The Company has made available to Parent a true and complete copy of each Material Contract required to be listed on Section 3.15(a) of the Company Disclosure Schedule.
(xiib) any other Ibex Contract that has a term of more than 60 days Except as does not have, and that may would not reasonably be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates expected to have, individually or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) a Material Adverse Effect on the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "Company: (i)" through "(xiii)" above are referred ) each Material Contract to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies which the Company or any of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that its Subsidiaries is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule a party is valid and in full force and effecteffect and is valid and binding on and enforceable against the Company and/or its Subsidiaries, as applicable, in accordance with their terms and, to the best knowledge of the Company, no other Person that is a party thereto has alleged that it is not binding on and enforceable to them; (ii) neither the Company nor any of its Subsidiaries nor, to the knowledge of Ibex and the Designated ShareholdersCompany, any other party to any such Material Contract, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtorsmaterial breach thereof or material default thereunder, and no event has occurred that, with the giving of notice or the lapse of time or both, would constitute a material breach thereof or material default thereunder; and (iiiii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 each of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, Company and its Subsidiaries and, to the best knowledge of the knowledge of Ibex and Company, the Designated Shareholders, no other Person or Persons party thereto has violated materially performed all of its material obligations required to be performed by it under each Material Contract to which the Company or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material ContractSubsidiaries is a party.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Contracts. (a) Part 2.10 Section 3.10(a) of the Company Disclosure Schedule identifies each Contract to which an Acquired Company is a party, or by which it is bound, that constitutes a Material Contract as of the date of this Agreement and identifies, with respect to each Material Contract, the clause of Section 3.10 (a) to which it applies. For purposes of this Agreement, each of the following Contracts to which an Acquired Company is a party or by which it is bound as of the date of this Agreement (other than (1) nondisclosure agreements entered into (x) in the ordinary course of business consistent with past practice or (y) in connection with discussions, negotiations and transactions related to this Agreement or other potential strategic transactions or (2) any Employee Plan) constitutes a “Material Contract”:
(i) each Ibex any Contract relating to that is a settlement, conciliation or similar agreement (A) in respect of the employment ofE-Product, or (B) with or approved by any Governmental Body and pursuant to which (x) any of the performance Acquired Companies will be required after the date of services bythis Agreement to pay any monetary obligations, (y) that contains obligations or limitations on the Acquired Companies’ conduct (excluding customary confidentiality requirements and other similar administrative requirements), or (z) any employeeof the Acquired Companies had made any admission of wrongdoing, consultant liability, or independent contractorresponsibility;
(ii) each Ibex any Contract relating to (A) materially limiting the acquisition, transfer, use, development, sharing freedom or license right of any technology Acquired Company to engage in any line of business or to compete with any Proprietary Assetother Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by any Acquired Company, or (C) containing exclusivity obligations or otherwise materially limiting the freedom or right of any Acquired Company to sell, distribute or manufacture any products or services for any other Person;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business requires by its terms or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) is reasonably expected to require the payment or delivery of cash or other consideration to the Acquired Companies in an amount or having a value in excess of $10,000 250,000 in the aggregatefiscal year ending December 31, 2020, or (B) by the performance of services Company in an amount having a value in excess of $10,000 250,000 in the aggregate. fiscal year ending December 31, 2020, and in each case (Contracts A) that cannot be cancelled by the Acquired Companies without penalty or further payment without more than sixty (60) days’ notice and (B) excluding commercially available off-the-shelf software licenses and Software-as-a-Service offerings, generally available patent license agreements, material transfer agreements, clinical trial agreements and non-exclusive outbound license agreements (in each case, entered into in the respective categories described ordinary course of business);
(iv) any Contract relating to Indebtedness in clauses "excess of $50,000 (whether incurred, assumed, guaranteed or secured by any asset) of the Acquired Companies;
(v) any Contract with any Person constituting a material joint venture, collaboration, partnership or similar profit sharing arrangement;
(vi) any Contract that by its express terms requires any Acquired Company, or any successor to, or acquirer of, any Acquired Company, to make any payment to another Person as a result of a change of control of any Acquired Company (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(vii) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the capital stock of any Acquired Company, the pledging of the capital stock or other equity interest of any Acquired Company or the issuance of any guaranty by any Acquired Company;
(viii) any (A) In-bound License and (B) Out-bound License;
(ix) any Contract pursuant to which any Acquired Company has continuing obligations or interests involving (A) “milestone” or other similar contingent payments, including upon the achievement of regulatory or commercial milestones which would result in a payment in excess of $250,000, or (B) payment of royalties or other amounts calculated based upon any revenues or income of any Acquired Company or the E-Product or any Product Candidate, in each case that cannot be terminated by such Acquired Company without penalty without more than sixty (60) days’ notice;
(x) each Contract for the acquisition or divestiture of a business or of material assets that contains continuing representations, covenants, indemnities or other obligations (including “earn out” or other contingent payment obligations), but excluding any material transfer agreements, clinical trial agreements and non-exclusive licenses, in each case, in the ordinary course of business;
(xi) any Contract that relates to any swap, forward, futures, or other similar derivative transaction;
(xii) any Contract between any Acquired Company and any Governmental Body;
(xiii) any Contract for material Leased Real Property;
(xiv) any other Contract that is currently in effect and has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(xv) any Contract relating to the E-Product containing terms addressing or relating to (x) drug development, research services, pilot programs, clinical trials or other testing programs (other than clinical trial agreements entered into in the ordinary course), including any material collaboration, joint development or other similar agreement, (y) the marketing, supply, manufacturing, distribution, commercialization, purchase or sale of the E-Product (including any sole source supply, co-promotion, sales representative, distribution, wholesaler, reseller or other similar agreement) or (z) the pricing or reimbursement terms for the E-Product or any other product, in each case, (i)" through ") that does not otherwise constitute a Material Contract under another subclause of this Section 3.10 and (xiii)" above are referred ii) that is not financially or operationally insignificant to the Acquired Companies; and
(xvi) any Contract with a Related Party or in this Agreement as "Material Contractswhich a Related Party has a direct or indirect material financial interest.")
(b) Ibex The Company has either delivered or made available to Castelle Parent an accurate and complete copies copy of all written Contracts identified each Material Contract or has publicly filed each Material Contract in Part 2.10 the Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) database of the Disclosure ScheduleSEC. Neither the applicable Acquired Company nor, including all amendments thereto. Part 2.10 to the knowledge of the Disclosure Schedule provides an accurate description Company as of the terms date of each Ibex this Agreement, any other party is in material breach of, or material default under, any Material Contract and neither the applicable Acquired Company nor to the knowledge of the Company, any other party to a Material Contract has taken or failed to take any action that is not in written formwith or without notice, lapse of time or both would constitute a material breach of or material default under any Material Contract. Each Material Contract identified in Part 2.10 is, with respect to the applicable Acquired Company and, to the knowledge of the Disclosure Schedule is Company, each other party thereto, a valid and binding agreement in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, except as such enforcement may be subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application applicability relating to bankruptcy, insolvency and the relief of debtorsor affecting creditors’ rights, and (ii) rules by general equitable principles. Since January 1, 2018 through the date of law governing specific performancethis Agreement, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex Acquired Companies has not violated received or breached, or committed delivered any default under, notice regarding any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a material violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex that has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreementsince been cured.
Appears in 1 contract
Contracts. (a) Part 2.10 Set forth in Section 5.7(a) of the Disclosure Schedule identifies:is a list of Contracts in effect as of the Effective Date to which the Company or the Company Subsidiaries are parties which are in the categories listed below (other than the Real Property Leases and any Contract that is, or relates to, any Employee Plan) (the Contracts listed in Section 5.7(a) of the Disclosure Schedule, together with the Real Property Leases, the Related Party Agreements and any Contract entered into after the date hereof that would be required to be disclosed in Section 5.7(a) of the Disclosure Schedule if entered into prior to the date hereof, the "Material Contracts"):
(i) each Ibex Contract relating to under which the employment ofCompany or the Company Subsidiaries have borrowed any money or issued any note, bond, debenture or similar instrument, or have directly or indirectly guaranteed any borrowed money of any other Person or any note, bond, debenture or similar instrument issued by any other Person, in any such case involving unpaid principal amounts in excess of $25,000, other than intercompany loans, advances or receivables (or guarantees thereof) (it being understood that "borrowed any money" does not include any accounts payable in the performance Ordinary Course of services by, any employee, consultant or independent contractorBusiness);
(ii) (A) each Ibex Contract relating pursuant to which the acquisition, transfer, use, development, sharing or license of any technology Company or any Proprietary AssetCompany Subsidiary grants to any Person the option, license or other right to use any Company Intellectual Property, other than non-exclusive licenses granted in the ordinary course in connection with the sale, distribution or marketing of Company's products, and (B) all Contracts pursuant to which the Company or any Company Subsidiary obtains the option, license or other right from any Person to use any Intellectual Property (other than for commercially available software with annual payments of less than $75,000);
(iii) each Ibex Contract imposing any restriction on Ibex's right for capital expenditures or ability (A) to compete with any other Personthe acquisition or construction of fixed assets for the benefit and use of the Company or the Company Subsidiaries, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal the performance of which involves unpaid commitments in any other manner with any other Person, or (C) develop or distribute any technologyexcess of $50,000;
(iv) each Ibex Contract creating with a Major Customer or involving any agency relationshipMajor Supplier (provided that standard purchase orders, distribution arrangement sales orders or franchise relationshipquotes with Material Customers or Material Suppliers do not need to be separately scheduled, but constitute Material Contracts);
(v) each Ibex Contract relating limiting the right of the Company or the Company Subsidiaries to the acquisition, issuance engage in or transfer of compete with any securitiesPerson in any business or in any geographical area or containing exclusivity or most favored nations terms or covenants;
(vi) each Ibex Contract relating to partnership or joint venture agreement (excluding any sub-contractor arrangements entered into in the creation Ordinary Course of any Encumbrance with respect to any asset of IbexBusiness in which the Company or the Company Subsidiaries is subcontracting services from others);
(vii) each Ibex Contract involving the acquisition or incorporating disposition by the Company or the Company Subsidiaries of any guaranty, any pledge, any performance business enterprise whether via stock or completion bond, any indemnity asset purchase or any surety arrangementotherwise which contains an ongoing obligation on the Company or the Company Subsidiaries;
(viii) each Ibex Contract creating Contract, arrangement or relating to any partnership commitment with a current officer, director, employee or joint venture independent contractor of the Company or any sharing the Company Subsidiaries who receives annual compensation (excluding bonus) in excess of revenues$140,000, profitsother than such Contracts that are terminable by the Company or the applicable Company Subsidiary at-will without triggering a notice period, losses, costs severance or liabilitiesother similar obligations;
(ix) each Ibex Contract relating between the Company and an independent dealer, distributor or similar agent of the Company's products pursuant to which Contract the purchase Company had sales to such dealer of $250,000 or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined more in Section 2.18)calendar year 2020;
(x) any Contract for the purchase, sale, construction, repair or maintenance of inventory, raw materials, commodities, supplies, goods, products, equipment or other tangible property, or for the furnishing or receipt of services, in each Ibex case, which Contract constituting provides for (or relating would be reasonably expected to a Government Contract involve) annual payments to or Government Bid;by an Acquired Company in excess of $100,000 or aggregate payments to or by an Acquired Company in excess of $100,000; and
(xi) each Contract, other than Real Property Leases, relating to the lease or license of any asset (other than Intellectual Property) with annual lease payments in excess of $50,000).
(b) Each of the Material Contracts is in full force and effect and is a legal, valid and binding agreement of the Company or the Company Subsidiaries, as applicable, and, to the Company's Knowledge, each other party thereto, subject only to the General Enforceability Exceptions, and there is no material default or breach by the Company or the Company Subsidiaries, as applicable, or, to the Company's Knowledge, any other Ibex Contract that was entered into outside party, in the timely performance of any obligation to be performed or paid thereunder or any other material provision thereof. Except for the cancellation, modification and resubmission of purchase orders in the ordinary course of business or was inconsistent consistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after practice, the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex Company has not received any notice written, or, to the Company's Knowledge, oral, notices of termination, non-renewal or other communication regarding notices of material change with respect to any actual Material Contracts. The Company has made available to the Buyer a true and complete copy of each Material Contract existing on the date hereof, in each case, as amended or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex otherwise modified and in effect. The Company has not waived any delivered to the Buyer a written summary setting forth all of its the material rights under any terms and conditions of each oral Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
Contracts. (a) Part 2.10 Section 3.11(a) of the Company Disclosure Schedule identifies:
sets forth a complete and accurate list of all contracts and agreements to which the Company is a party as of the date of this Agreement that are material to the business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole, including without limitation (i) each Ibex Contract relating to the employment ofa list of customers currently under maintenance, or the performance of services by, any employee, consultant or independent contractor;
(ii) each Ibex Contract relating to the acquisitionlist of open purchase orders for statements of work with revenue of at least $100,000, transfer, use, development, sharing or license of any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right agreement, contract or ability commitment (A) in connection with which or pursuant to compete with which the Company or any other Personof its Subsidiaries has made a binding commitment to a customer for future product function or performance, and (B) in connection with which or pursuant to acquire any product which the Company and its Subsidiaries are committed to spend, in the aggregate, more than $250,000 during the current fiscal year or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
during the next fiscal year; (iv) each Ibex Contract creating any non-competition or involving other agreement that prohibits or otherwise restricts, in any agency relationshipmaterial respect, distribution arrangement the Company or franchise relationship;
any of its Subsidiaries from freely engaging in business anywhere in the world; (v) each Ibex Contract relating any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the acquisition, issuance or transfer of any securities;
Company and its Subsidiaries; (vi) each Ibex Contract relating to the creation of any Encumbrance Employment Agreement or consulting agreement with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product executive officer or other asset by employee of the Company or to, or member of the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value Company Board earning annual base compensation in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to100,000, (Avii) result in a violation any contract which would prohibit or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) materially delay the consummation of the Merger or any of the other transactions contemplated by this Agreement and (viii) any contract pursuant to which the Company or any of its Subsidiaries is obligated to pay future royalties (collectively, the “Company Material Contracts”). The Company has made available to the Buyer a complete and accurate copy of each Company Material Contract.
(b) Each Company Material Contract is valid and binding on the Company and its Subsidiaries, as applicable, and is in full force and effect except to the extent it has previously expired in accordance with its terms or where the failure to be in full force and effect, individually or in the aggregate, is not reasonably likely to have a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party to any Company Material Contract is in violation of or in default under (nor does there exist any condition which, upon the passage of time or the giving of notice or both, would cause such a violation of or default under) any Company Material Contract, except for violations or defaults that, individually or in the aggregate, are not reasonably likely to have a Company Material Adverse Effect.
(c) Except as disclosed in the Company SEC Reports filed prior to the date of this Agreement., neither the Company nor any of its Subsidiaries has entered into any transaction with any Affiliate of the Company or any of its Subsidiaries or any transaction that would be subject to proxy statement disclosure pursuant to Item 404 of Regulation S-K.
Appears in 1 contract
Sources: Merger Agreement (Matrixone Inc)
Contracts. (a) Part 2.10 Schedule 6.11(a) identifies each of the Disclosure Schedule identifies:following Contracts used or held for use in connection with the Business to which either Company Group Member is a party or by which it or its properties is bound (each such identified Contract and each such Scheduled Lease is referred to as a “Material Contract”):
(i) each Ibex any Contract relating to the employment of, with a Material Customer or the performance of services by, any employee, consultant or independent contractora Material Supplier;
(ii) each Ibex any Contract relating with any other supplier (including Contracts pursuant to which the Company receives commissions in connection with the sale of the supplier’s products) that represented more than $100,000 in annual gross profit in the 2013 calendar year, other than a Contract that (A) is terminable by any party thereto giving notice of termination to the acquisitionother party thereto not more than ninety (90) days in advance of the proposed termination date and (B) even if so terminable, transfercontains no post-termination obligations, usetermination penalties, developmentbuy-back obligations or similar obligations, sharing or license in excess of any technology or any Proprietary Asset$100,000;
(iii) each Ibex any Contract imposing in which either Company Group Member grants any restriction on Ibex's Person the exclusive right to sell products or ability provide services within any geographical region other than a Contract that (A) is terminable by any party thereto giving notice of termination to compete with any the other Person, party thereto not more than ninety (90) days in advance of the proposed termination date and (B) to acquire any product even if so terminable, contains no post-termination obligations, termination penalties, buy-back obligations or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technologysimilar obligations;
(iv) each Ibex any Contract creating that purports to limit the freedom of either Company Group Member to compete in any line of business or involving to sell any agency relationshipproduct(s), distribution arrangement or franchise relationshipcontains similar restrictions that would be applicable to Buyer after the consummation of the transactions contemplated hereby (such as a restriction on any Affiliate of the Company);
(v) each Ibex any Contract relating to that was entered since June 30, 2010 other than in the acquisition, issuance Ordinary Course of Business of the Company Group (including the acquisition or transfer disposition of all or substantially all of the equity or assets of any securitiescompany or operating division (by asset sale, stock sale, merger or otherwise), but excluding the JACAAB Purchase Agreement;
(vi) each Ibex any Contract constituting a partnership, joint venture or other similar Contract, or any Contract relating to or covering an agency arrangement with the creation Company (including any sales representative, power of attorney or agent agreement, but excluding any Encumbrance with respect agreement between the Company and a supplier to any asset the Company for the supply of Ibexproducts);
(vii) each Ibex any Contract involving or incorporating any guarantyrelating to indebtedness for borrowed money, any pledgeContract creating a capital lease obligation, any performance or completion bondContract for the sale of accounts receivable, any indemnity Contract constituting a guarantee of debt of any third Person or any surety arrangementContract requiring either Company Group Member to maintain the financial position of any other Person;
(viii) each Ibex any Contract creating constituting a guaranty, surety or relating to indemnification obligation of (A) either Company Group Member, whether direct or indirect, or (B) any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilitiesthe Archway Parties;
(ix) each Ibex any Contract in respect of Intellectual Property Rights granted to or by either Company Group Member (other than any such Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18off-the-shelf software);
(x) each Ibex Contract constituting any lease (including any master lease covering multiple items of personal property) of any item or relating to items of personal property with a Government Contract rental expense under such lease (whether for a single item or Government Bidmultiple items) in excess of $100,000 in any consecutive 12-month period;
(xi) any Contract providing for the deferred payment of any purchase price including any “earn out” or other Ibex Contract that was entered into outside contingent fee arrangement, except for a trade credit offered in the ordinary course Ordinary Course of business or was inconsistent with Ibex's past practicesBusiness;
(xii) any other Ibex Contract creating a Lien on any of the Company Group Assets that has is not a term of more than 60 days Permitted Lien and that may will not be terminated by Ibex (without penalty) within 60 days after discharged at or prior to the delivery of a termination notice by ▇▇▇▇; andClosing;
(xiii) any Contract between either Company Group Member, on the one hand, and any Affiliate of the Company, on the other Ibex hand (including any Contract that contemplates or involves providing for (A) compensation, the payment acceleration of benefits or delivery the loss of cash or other consideration any rights in an amount or having a value in excess connection with the consummation of $10,000 in the aggregate, transactions contemplated by this Agreement or (B) the performance indemnification of services having such Affiliate by either Company Group Member);
(xiv) any Contract providing for the purchase or sale of real property;
(xv) any Contract between either Company Group Member and any Governmental Authority;
(xvi) any Contract involving interest rate swaps, cap or collar agreements, commodity or financial future or option contracts or similar derivative or hedging Contracts;
(xvii) any Contract related to the consignment of third party inventory to or by either Company Group Member;
(xviii) any Contract pursuant to which either Company Group Member received a value commission representing in excess of $10,000 100,000 in annual gross profit during the aggregate. Company’s most recently completed fiscal year or is reasonably expected to receive a commission in excess of $100,000 in annual gross profit during the Company’s current fiscal year upon the sale of product owned by a third party; and
(Contracts xix) any Contract pursuant to which a third party carrier provides transportation services to either Company Group Member involving annual consideration in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contractsexcess of $100,000.")
(b) Ibex has delivered to Castelle accurate A true and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms copy of each Ibex Material Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect(or if oral, anda summary thereof), as amended, has been made available to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remediesBuyer.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
disclosed on Schedule 6.11(c): (i) Ibex has not violated or breachedeach Material Contract is the legal, or committed any default under, any Ibex Contractvalid obligation of a Company Group Member, and, to the best Knowledge of the knowledge of Ibex and the Designated ShareholdersArchway Parties, no any other Person has violated or breachedparty thereto, or committed any default underbinding and enforceable against such Company Group Members and, to the Knowledge of the Archway Parties, any Ibex Contract;
other Person party thereto, in accordance with its terms subject to Creditors’ Rights; (ii) each Material Contract has not been terminated except in the Ordinary Course of Business; (iii) neither Company Group Member nor, to the best Knowledge of the knowledge Archway Parties, any other Person is in material breach or default thereunder; (iv) to the Knowledge of Ibex and the Designated Shareholders, Archway Parties no event has occurred, and no circumstance or condition exists, occurred that (with or without notice or lapse of time) will, or could reasonably be expected toboth, would constitute a material breach or default, or permit termination, modification in any manner adverse to such Company Group Members or acceleration thereunder; (Av) result in a violation no party has asserted or breach has (except by operation of law) any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default offset, discount or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, otherwise ▇▇▇▇▇ any amount paid or payable to Ibex owing under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract except as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as expressly set forth in Part 2.10(hsuch Material Contract; and (vi) of the Disclosure Schedule, Ibex has there are currently effective waivers regarding any Material Contract that have not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required been disclosed in writing to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this AgreementBuyer.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nexeo Solutions Holdings, LLC)
Contracts. Section 3.9 of the Seller Disclosure Letter contains a complete and accurate list of all Contracts to which an Acquired Company, Seller or any Selling Subsidiary (with respect to the Seller and the Selling Subsidiary, to the extent the Contract is included in the GMS Assets) is a party as of the date hereof: (a) Part 2.10 for the future sale of products or services by the Disclosure Schedule identifies:
Business and under which the Business could reasonably be expected to receive payments under a single Contract of more than $2,000,000 during the 12-month period following the date of this Agreement (i) each Ibex Contract relating for the purposes of this clause (a), all requirements contracts, LTAs and blanket purchase orders which are related to the employment ofsame program component shall be considered collectively as a single “Contract”); (b) for the future purchase of products or services with expected payments in excess of $2,000,000 during the remaining term except for any such Contract that may be canceled, without any penalty or other liability to the Business in excess of $100,000, within one (1) year; (c) establishing or governing the management of any partnership, joint venture or similar arrangement, or the performance of services by, any employee, consultant acquisition or independent contractor;
(ii) each Ibex Contract relating to the acquisition, transfer, use, development, sharing or license disposal of any technology joint ventures or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right similar arrangement, or ability (A) to compete involving a sharing of profits or losses with any other Person, ; (Bd) that require the Business to acquire deal exclusively with the counterparty or that limit the ability of the Business to compete in any product or other asset or geographic market; (e) for the lease of any services from personal property involving annual lease payments in excess of $500,000 per year for any other Personsuch Contract that may be canceled, to sell without any product penalty or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating liability to the acquisitionBusiness in excess of $100,000, issuance or transfer of any securities;
within one (vi1) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
year; (viif) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase of any business or Person (or all or any substantial portion of the assets of any business, business unit, facility or Person) entered into within three (3) years from the date hereof; (g) relating to the sale or disposition of any material Business Assets (other than the sale of any product Inventory or other asset by obsolete or to, or the performance of any services by or for, any Related Party (as defined worn-out Business Assets replaced in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business consistent with past practice) entered into within three (3) years from the date hereof; (h) relating to any employment, consulting or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term similar agreement requiring payment by the Business of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates base annual fees or involves (A) the payment or delivery of cash or other consideration in an amount or having a value compensation in excess of $10,000 in the aggregate150,000 to any Person; (i) evidencing any Indebtedness; (j) a Contract with Seller, a Selling Subsidiary or any of their respective Affiliates, or any current or former director, officer, or employee of any of the foregoing, or any Affiliate or immediate family member of any such director, officer or employee, that will not be terminated without liability to the Business at or prior to the Closing; (Bk) any mortgage, pledge, security agreement, deed of trust or other document granting any Encumbrance (other than any Permitted Encumbrances) upon any Business Assets (including Encumbrances upon properties acquired under conditional sales, capital lease or other title retention or security devices); (l) any Contract entered into in connection with any settlement of any legal proceeding involving unfulfilled or pending payments by the performance of services having a value Business in excess of $10,000 100,000; and (m) providing for capital expenditures after the date hereof in excess of $500,000, individually. The Contracts listed (or required to be listed) in Section 3.9 of the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above Seller Disclosure Letter are referred to in this Agreement collectively herein as "the “Material Contracts.")
(b) Ibex has delivered to Castelle accurate ” Each Material Contract is, as of the date hereof, valid and is in full force and effect in accordance with the terms of such Material Contract. True and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Scheduleeach Material Contract (including each material amendment, including all amendments supplement or other modification thereto) have been made available to Buyer. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 Section 3.9 of the Seller Disclosure Schedule:
(i) Ibex has not violated or breachedLetter, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, there is no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a material default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance claim of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or material default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, and no event has occurred that, with the passage of time or has the giving of notice or both, would constitute a right pursuant material breach or material default by Seller, an Acquired Company or any Selling Subsidiary or, to the terms of any Ibex Contract to renegotiateSeller’s Knowledge, any amount paid or payable to Ibex other party thereto under any Material Contract Contract, or any other material term would permit modification, acceleration, or provision termination of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business , or result in the manner in which its business is currently being conducted.
creation of an Encumbrance (fother than a Permitted Encumbrance) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or on any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this AgreementBusiness Assets.
Appears in 1 contract
Sources: Purchase Agreement (Teleflex Inc)
Contracts. (a) Part 2.10 Schedule 3.22(a) sets forth a list of all Contracts to which the Seller and IGXUK are a party or by which the Seller, IGXUK, the IT Solutions Business or any of the Disclosure Schedule identifiesAssets is bound as of the date hereof including:
(i1) each Ibex any Contract relating for IGXUK’s or the Seller’s provision of engineering or other services related to the employment of, or the performance of services by, any employee, consultant or independent contractorIT Solutions Business;
(ii2) each Ibex any continuing Contract relating to the acquisition, transfer, use, development, sharing for management or license consulting services or services of any technology independent contractors or any Proprietary Assetsubcontractors;
(iii3) each Ibex any Contract imposing that expires more than one year after the date of this Agreement and any restriction on Ibex's right Contract that may be renewed at the option of any person other than the Seller so as to expire more than one year after the date of this Agreement;
(4) any trust indenture, mortgage, promissory note, loan agreement or ability other Contract for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with GAAP;
(A5) any Contract for capital expenditures in excess of $5,000 (or, if applicable, the sterling or Euro equivalent) in the aggregate;
(6) any Contract limiting the freedom of the Seller to engage in any line of business or to compete with any other Person, (B) to acquire any product or other asset or any services from confidentiality, secrecy or non- disclosure contract or any other Personcontract that may be terminable as a result of the Seller’s status as a competitor of any party to such contract;
(7) any Contract pursuant to which the Seller is a lessor of any Tangible Personal Property, pursuant to sell which payments in excess of $5,000 remain outstanding;
(8) any product Contract with an affiliate;
(9) any agreement of guarantee, support, indemnification, assumption or other asset to endorsement of, or perform any services for similar commitment with respect to, the Liabilities of any other Person other than customary customer agreements made in the ordinary course of the IT Solutions Business;
(10) any employment Contract, arrangement or to transact business policy (including any collective bargaining contract or deal in union agreement) that may not be immediately terminated without financial notifications or penalty (or any other manner augmentation or acceleration of benefits);
(11) any Contract providing for a joint venture or partnership with any other Person, or (C) develop or distribute any technology;
(iv12) each Ibex Contract creating or involving any agency relationshiporal contract, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating true and correct summaries of which have been provided to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇Seller; and
(xiii13) any other Ibex Contract that contemplates or involves (A) is otherwise in any way material to the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in Assets and/or the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories IT Solutions Business and is not described in clauses "(i)" through "(xiii)" above are referred to any of the categories specified in this Agreement as "Material Contracts.")this
(b) Ibex The Seller and IGXUK have performed, in all material respects, all of the obligations required to be performed by either and, to Seller’s Knowledge, are entitled to all benefits under, and, to Seller’s Knowledge, are not alleged to be in default in respect of any Assigned Contract (or, with respect to IGXUK, any Contract described in Section 3.22(a) to which IGXUK is a party (each an “IGXUK Contract”)). Each of the Assigned Contracts and IGXUK Contracts is valid and binding and in full force and effect (subject to bankruptcy, reorganization, receivership and other laws affecting creditors’ rights generally and applicable equitable principles (whether considered in a proceeding at law or in equity)), and except as disclosed on Schedule 3.22(b), to Seller’s Knowledge, there exists no default or event of default or event, occurrence, condition or act, with respect to the Seller or IGXUK, or with respect to the other contracting party, that, with the giving of notice, the lapse of time or the happening of any other event or condition, would become a default or event of default under any Assigned Contract or any IGXUK Contract. Neither the Seller nor IGXUK has delivered received written or oral notice of cancellation, modification or termination of any Assigned Contract or IGXUK Contract. Seller and IGXUK do not have actual notice that one or more of the parties to Castelle accurate any Assigned Contract or IGXUK Contract intends to terminate or alter the provisions thereof by reason of the transactions contemplated hereby. Since the date of the latest balance sheet of the Seller contained in the Financial Statements, except as set forth on Schedule 3.22(b), neither the Seller nor IGXUK has waived any right under any Assigned Contract or IGXUK Contract, amended or extended any Assigned Contract or IGXUK Contract or failed to renew (or received notice of termination or failure to renew with respect to) any Assigned Contract or IGXUK Contract. True, correct and complete copies of all written Assigned Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, IGXUK Contracts have been delivered to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remediesPurchaser.
(c) Except as set forth in Part 2.10 Schedule 3.22(a) denotes with an asterisk all of the Disclosure Schedule:
Contracts (iif any) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably will be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material ContractExcluded Contracts.
(d) No Person is renegotiating, or has a right pursuant None of the Assigned Contracts was awarded to the terms Seller or IGXUK as a result of any Ibex Contract to renegotiate, any amount paid (in whole or payable to Ibex under any Material Contract in part) IGXUK or any other material term the Seller’s status as a minority-owned or provision of any Material Contractdisadvantaged business or similar status.
(e) The Contracts identified in Part 2.10 All of the Disclosure Schedule collectively constitute all Assigned Contracts may be assigned to the Purchaser without obtaining the consent of any party thereto, other than to the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as extent specifically set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreementon Schedule 3.22(e).
Appears in 1 contract
Contracts. (a) Part 2.10 Section 3.10(a) of the Company Disclosure Schedule identifies each Contract to which any Acquired Company is a party, or by which it is bound, that constitutes a Material Contract as of the date of this Agreement and identifies, with respect to each Material Contract, the clause of Section 3.10(a) to which it applies. For purposes of this Agreement, each of the following to which any Acquired Company is a party or by which it is bound as of the date of this Agreement (other than Employee Plans or nondisclosure agreements entered into (x) in the ordinary course of business consistent with past practice or (y) in connection with discussions, negotiations and transactions related to this Agreement or other potential strategic transactions) constitutes a “Material Contract”:
(i) each Ibex any Contract relating that is a settlement, conciliation or similar agreement with or approved by any Governmental Body and pursuant to which (A) any Acquired Company will be required after the employment of, date of this Agreement to pay any monetary obligations or the performance of services by, (B) that contains material obligations or limitations on any employee, consultant or independent contractorAcquired Company’s conduct;
(ii) each Ibex any Contract relating to (A) materially limiting the acquisition, transfer, use, development, sharing freedom or license right of any technology Acquired Company to engage in any line of business or to compete with any Proprietary Assetother Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by any Acquired Company, or (C) containing exclusivity obligations or otherwise materially limiting the freedom or right of any Acquired Company to sell, distribute or manufacture any products or services for any other Person;
(iii) each Ibex any Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Personthat requires by its terms, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationshipis reasonably expected to require, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration to or by any Acquired Company in an aggregate amount or having a value in excess of $10,000 2,000,000 in the aggregatefiscal year ending December 31, 2023, and in each case (A) that could not or, if still in effect, cannot be cancelled by such Acquired Company without penalty or further payment without more than sixty (60) days’ notice and (B) excluding commercially available off-the-shelf software licenses and Software-as-a-Service offerings, generally available patent license agreements, material transfer agreements, clinical trial agreements and non-exclusive outbound license agreements (in each case, entered into in the ordinary course of business consistent with past practice);
(iv) any material distribution, wholesale, third-party logistics, pharmacy benefit manager or payer Contract;
(v) any Contract relating to Indebtedness in excess of $150,000 (whether incurred, assumed, guaranteed or secured by any asset) of any Acquired Company;
(vi) any Contract with any Person constituting a material joint venture, collaboration, partnership or similar profit sharing arrangement;
(vii) any Contract that by its express terms requires any Acquired Company, or any successor to, or acquirer of, any Acquired Company, to make any payment to another Person as a result of a change of control of any Acquired Company (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(viii) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the capital stock of any Acquired Company, the pledging of the capital stock or other equity interest of any Acquired Company or the issuance of any guaranty by any Acquired Company;
(ix) any (A) In-bound License and (B) Out-bound License;
(x) any Contract pursuant to which any Acquired Company has continuing obligations or interests involving (A) “milestone” or other similar contingent payments, including upon the achievement of regulatory or commercial milestones which would result in a payment in excess of $750,000, or (B) payment of royalties or other amounts calculated based upon any revenues or income of any Acquired Company, in each case that cannot be terminated by such Acquired Company without penalty without more than sixty (60) days’ notice;
(xi) each Contract for the performance acquisition or divestiture of services having a business or of material assets that contains continuing representations, covenants, indemnities or other obligations (including “earn out” or other contingent payment obligations), but excluding any material transfer agreements, clinical trial agreements and non-exclusive licenses, in each case, that were entered into in the ordinary course of business consistent with past practice;
(xii) any Contract that relates to any swap, forward, futures or other similar derivative transaction with a notional value in excess of $10,000 150,000;
(xiii) any Contract between any Acquired Company and any Governmental Body;
(xiv) any Contract for material Leased Real Property;
(xv) any other Contract that is currently in effect and has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act; and
(xvi) any Contract (A) with any Affiliate, director, executive officer (as such term is defined in the aggregate. Exchange Act), Person holding 5% or more of the Shares, or, to the knowledge of the Company, any Affiliate (Contracts other than the Company) or immediate family member of any of the foregoing or (B) in which any of the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contractsforegoing Persons has a direct or indirect material financial interest.")
(b) Ibex The Company has delivered made available to Castelle Parent an accurate and complete copies copy of all written Contracts identified each Material Contract or has publicly filed each Material Contract in Part 2.10 the Electronic Data Gathering, Analysis and Retrieval (E▇▇▇▇) database of the Disclosure ScheduleSEC. Except as has not had, including all amendments thereto. Part 2.10 individually or in the aggregate, a Material Adverse Effect, (i) no Acquired Company nor, to the knowledge of the Disclosure Schedule provides an accurate description Company, any other party is in material breach of, or material default under, any Material Contract and no Acquired Company nor to the knowledge of the Company, any other party to a Material Contract has taken or failed to take any action that with or without notice, lapse of time or both would constitute a material breach of or material default under any Material Contract; (ii) each Material Contract (other than any Contract that (x) has expired in accordance with its terms or (y) prior to the date hereof, has been terminated, restated or replaced or if after the date hereof, has been terminated, restated or replaced in compliance with the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 this Agreement) is, with respect to the Acquired Companies party thereto and, to the knowledge of the Disclosure Schedule is Company, each other party thereto, a valid and binding agreement in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, except as such enforcement may be subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application applicability relating to bankruptcy, insolvency and the relief of debtorsor affecting creditors’ rights, and (ii) rules of law governing specific performance, injunctive relief by general equitable principles; and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31January 1, 19922022 through the date of this Agreement, Ibex no Acquired Company has not received or delivered any written notice or other communication or, to the knowledge of the Company, oral notice, regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex that has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreementsince been cured.
Appears in 1 contract
Contracts. (a) Part 2.10 Section 3.10(a) of the Company Disclosure Schedule identifies each Contract to which any Acquired Company is a party, or by which it is bound, that constitutes a Material Contract as of the date of this Agreement and identifies, with respect to each Material Contract, the clause of Section 3.10(a) to which it applies. For purposes of this Agreement, each of the following to which any Acquired Company is a party or by which it is bound as of the date of this Agreement (other than Employee Plans or nondisclosure agreements entered into (x) in the ordinary course of business consistent with past practice or (y) in connection with discussions, negotiations and transactions related to this Agreement or other potential strategic transactions) constitutes a “Material Contract”:
(i) each Ibex any Contract relating that is a settlement, conciliation or similar agreement with or approved by any Governmental Body and pursuant to which (A) any Acquired Company will be required after the employment of, date of this Agreement to pay any monetary obligations or the performance of services by, (B) that contains material obligations or limitations on any employee, consultant or independent contractorAcquired Company’s conduct;
(ii) each Ibex any Contract relating to (A) materially limiting the acquisition, transfer, use, development, sharing freedom or license right of any technology Acquired Company to engage in any line of business or to compete with any Proprietary Assetother Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by any Acquired Company, or (C) containing exclusivity obligations or otherwise materially limiting the freedom or right of any Acquired Company to sell, distribute or manufacture any products or services for any other Person;
(iii) each Ibex any Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Personthat requires by its terms, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationshipis reasonably expected to require, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration to or by any Acquired Company in an aggregate amount or having a value in excess of $10,000 2,000,000 in the aggregatefiscal year ending December 31, 2023, and in each case (A) that could not or, if still in effect, cannot be cancelled by such Acquired Company without penalty or further payment without more than sixty (60) days’ notice and (B) excluding commercially available off-the-shelf software licenses and Software-as-a-Service offerings, generally available patent license agreements, material transfer agreements, clinical trial agreements and non-exclusive outbound license agreements (in each case, entered into in the ordinary course of business consistent with past practice);
(iv) any material distribution, wholesale, third-party logistics, pharmacy benefit manager or payer Contract;
(v) any Contract relating to Indebtedness in excess of $150,000 (whether incurred, assumed, guaranteed or secured by any asset) of any Acquired Company;
(vi) any Contract with any Person constituting a material joint venture, collaboration, partnership or similar profit sharing arrangement;
(vii) any Contract that by its express terms requires any Acquired Company, or any successor to, or acquirer of, any Acquired Company, to make any payment to another Person as a result of a change of control of any Acquired Company (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(viii) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the capital stock of any Acquired Company, the pledging of the capital stock or other equity interest of any Acquired Company or the issuance of any guaranty by any Acquired Company;
(ix) any (A) In-bound License and (B) Out-bound License;
(x) any Contract pursuant to which any Acquired Company has continuing obligations or interests involving (A) “milestone” or other similar contingent payments, including upon the achievement of regulatory or commercial milestones which would result in a payment in excess of $750,000, or (B) payment of royalties or other amounts calculated based upon any revenues or income of any Acquired Company, in each case that cannot be terminated by such Acquired Company without penalty without more than sixty (60) days’ notice;
(xi) each Contract for the performance acquisition or divestiture of services having a business or of material assets that contains continuing representations, covenants, indemnities or other obligations (including “earn out” or other contingent payment obligations), but excluding any material transfer agreements, clinical trial agreements and non-exclusive licenses, in each case, that were entered into in the ordinary course of business consistent with past practice;
(xii) any Contract that relates to any swap, forward, futures or other similar derivative transaction with a notional value in excess of $10,000 150,000;
(xiii) any Contract between any Acquired Company and any Governmental Body;
(xiv) any Contract for material Leased Real Property;
(xv) any other Contract that is currently in effect and has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act; and
(xvi) any Contract (A) with any Affiliate, director, executive officer (as such term is defined in the aggregate. Exchange Act), Person holding 5% or more of the Shares, or, to the knowledge of the Company, any Affiliate (Contracts other than the Company) or immediate family member of any of the foregoing or (B) in which any of the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contractsforegoing Persons has a direct or indirect material financial interest.")
(b) Ibex The Company has delivered made available to Castelle Parent an accurate and complete copies copy of all written Contracts identified each Material Contract or has publicly filed each Material Contract in Part 2.10 the Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) database of the Disclosure ScheduleSEC. Except as has not had, including all amendments thereto. Part 2.10 individually or in the aggregate, a Material Adverse Effect, (i) no Acquired Company nor, to the knowledge of the Disclosure Schedule provides an accurate description Company, any other party is in material breach of, or material default under, any Material Contract and no Acquired Company nor to the knowledge of the Company, any other party to a Material Contract has taken or failed to take any action that with or without notice, lapse of time or both would constitute a material breach of or material default under any Material Contract; (ii) each Material Contract (other than any Contract that (x) has expired in accordance with its terms or (y) prior to the date hereof, has been terminated, restated or replaced or if after the date hereof, has been terminated, restated or replaced in compliance with the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 this Agreement) is, with respect to the Acquired Companies party thereto and, to the knowledge of the Disclosure Schedule is Company, each other party thereto, a valid and binding agreement in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, except as such enforcement may be subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application applicability relating to bankruptcy, insolvency and the relief of debtorsor affecting creditors’ rights, and (ii) rules of law governing specific performance, injunctive relief by general equitable principles; and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31January 1, 19922022 through the date of this Agreement, Ibex no Acquired Company has not received or delivered any written notice or other communication or, to the knowledge of the Company, oral notice, regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex that has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreementsince been cured.
Appears in 1 contract
Contracts. (a) Part 2.10 Section 4.18(a) of the Disclosure Schedule identifies(with paragraph references corresponding to those set forth below) contains a true and complete list of all Material Contracts of FirstFederal including, but not limited to, the following:
(i) each Ibex Contract relating to the employment ofContracts and other agreements with any current or former officer, director, shareholder, affiliate, employee, consultant, or the performance of services by, any employee, consultant or independent contractoragent;
(ii) each Ibex Contract relating Contracts with any person containing any provision or covenant prohibiting or limiting the ability of FirstFederal to engage in any business activity or compete with any person, or prohibiting or limiting the acquisition, transfer, use, development, sharing or license ability of any technology or any Proprietary Assetperson to compete with FirstFederal;
(iii) each Ibex Contract imposing Contracts relating to the future disposition or acquisition of any restriction on Ibex's right Assets, other than dispositions or ability (A) to compete acquisitions in the ordinary course of business consistent with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technologypast practice;
(iv) each Ibex Contract creating or involving Contracts under which FirstFederal agrees to indemnify any agency relationship, distribution arrangement or franchise relationshipperson;
(v) each Ibex Contract Contracts and other agreements relating to the acquisitionborrowing of money other than federally insured deposits, creation of Liens, issuance of letters of credit, or transfer the guarantee of any securitiesthe payment of Liabilities or performance of obligations by FirstFederal;
(vi) each Ibex Contract Contracts and other agreements relating to the creation provision of any Encumbrance with respect to any asset of Ibexservices which are not cancelable without penalty in thirty (30) or fewer days notice;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangementpowers of attorney;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any contracts and other Ibex Contract that was entered into agreements made outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇business; and
(xiiiix) any all other Ibex Contract contracts that contemplates or involves (A) involve the payment or delivery potential payment, pursuant to the terms of cash any such contract, by or other consideration to FirstFederal of more than $250,000 and cannot be terminated within 360 calendar days after giving notice of termination without resulting in an amount any material cost or having a value in excess of $10,000 in the aggregate, penalty to FirstFederal or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contractsany Subsidiary.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified required to be disclosed in Part 2.10 Section 4.18(a) of the Disclosure Schedule is valid and in full force and effecteffect and constitutes a legal, andvalid and binding agreement, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject of each party thereto; and except as disclosed in Section 4.18(b) of the Disclosure Schedule neither FirstFederal, nor, to the knowledge of FirstFederal, any other party to such Contract, is or has received notice that it is, in violation or breach of or default under any such Contract (ior with notice or lapse of time or both, would be in violation or breach of or default under any such Contract). None of the Contracts disclosed in Section 4.18(a) laws of general application relating to bankruptcy, insolvency and the relief Disclosure Schedule will terminate or lapse by reason of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remediesthe transactions contemplated by this Merger Agreement.
(c) Except as set forth disclosed in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(hSection 4.18(c) of the Disclosure Schedule, Ibex has not entered into and FirstFederal is not negotiating a party to or bound by any Government Contract that has been or Government Bidcould reasonably be expected to have, individually or in the aggregate with any other such Contracts, a Materially Adverse Effect on FirstFederal.
(d) Except as disclosed in Section 4.18(d) of the Disclosure Schedule and Ibex is not any other Section of the Disclosure Schedule, there are no Contracts, commitments, leases, permits or other instruments necessary to hold the Assets by FirstFederal, as and will not be required to make any filing with or give any notice towhere now held by FirstFederal, or to obtain any Consent fromconduct the business of FirstFederal, any Governmental Body under as and where now operated by FirstFederal, or in connection with any Government Contract related to the operation or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any management of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this AgreementAssets.
Appears in 1 contract
Sources: Agreement of Affiliation and Plan of Merger (Summit Bancorp /Oh/)
Contracts. (a) Part 2.10 Except as set forth on Schedule 4.6(a), immediately following the Closing, no Newly-Formed LLC is or will be bound by any of the Disclosure Schedule identifiesfollowing:
(i) each Ibex Contract relating any contract that grants a power of attorney, agency or similar authority to the employment of, or the performance of services by, any employee, consultant or independent contractoranother Person;
(ii) each Ibex Contract relating any contract to the acquisitionlend or advance to, transferinvest in, useor guarantee any indebtedness, developmentobligation or performance of, sharing or license of indemnify any technology or any Proprietary AssetPerson;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) contract relating to compete with the employment of any other PersonPerson by such Newly-Formed LLC not terminable at will by such Newly-Formed LLC without obligation to pay any severance, (B) to acquire any product termination or other asset payment, or any services from any other Personbonus, to sell any product deferred compensation, pension, severance, profit sharing, stock option, employee stock purchase, retirement or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Personemployee benefit plan, or (C) develop or distribute any technologyexcept the Employment Agreements;
(iv) any contract other than purchase orders in the ordinary course, pursuant to which such Newly-Formed LLC is (1) required to make payments of $75,000 or more, or (2) entitled to receive payments of $75,000 or more, and, in each Ibex such case, any such Contract creating is not, without a payment required thereunder (beyond those due for work performed or involving any agency relationshipmaterials delivered thereunder), distribution arrangement terminable upon thirty (30) days or franchise relationshipless notice;
(v) each Ibex Contract relating to any contract limiting the acquisition, issuance freedom of a Newly-Formed LLC from engaging in any business including any non-competition agreement or transfer of any securitiesother restrictive covenant agreement;
(vi) each Ibex except for Permitted Claims, any Contract relating to the creation of any Encumbrance that contains a Restriction with respect to any asset Contributed Asset of Ibexsuch Newly-Formed LLC;
(vii) each Ibex Contract any other contract other than purchase orders in the ordinary course, which involves consideration or other expenditures of a Newly-Formed LLC in excess of $75,000 or involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangementover a period of more than six (6) months;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;capitalized lease; and
(ix) each Ibex Contract relating any unexpired written bid or proposal to enter into any of the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract contacts identified above that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery is of a termination notice nature that it could, as presented, be accepted by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material ContractsThird Party and be thereby binding upon such Newly-Formed LLC.")
(b) Ibex has delivered Except as set forth on Schedule 4.6(b) each Contract to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedulewhich any Seller or Newly-Formed LLC is a party listed on Schedule 4.6(b) is as to such Seller or Newly-Formed LLC, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effecteffect and there exists no (i) material default by such Seller or Newly-Formed LLC or, to the knowledge of such Seller or Newly-Formed LLC, any material default by the other party/parties thereto or, to the knowledge of such Seller or Newly-Formed LLC, event of default which could reasonably be expected to cause a Material Adverse Effect, or (ii) event, occurrence, condition or act which, with the giving of notice or the lapse of time, would become a default or event of default thereunder which could reasonably be expected to cause a Material Adverse Effect. Each Seller or Newly-Formed LLC has substantially performed all of the terms and conditions of any Contract required to be performed at or prior to Closing to which it is a party in all material respects, and, to the best knowledge of such Seller or Newly-Formed LLC, all of the knowledge covenants to be performed by any other party/parties thereto have been performed in all material respects. A copy of Ibex each Contract identified on Schedule 4.6(a) or (b) or on any of the other Schedules to this Agreement has heretofore been delivered to the Company and the Designated Shareholderssuch copy is true, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtorscorrect, and (ii) rules complete in all material respects. Each Contract listed on any Schedule hereto is on arm’s-length terms. Each Seller or Newly-Formed LLC enjoys peaceful and undisturbed possession under all leases and licenses under which such Seller or Newly-Formed LLC is a grantee or licensee. No Seller has assigned, pledged, hypothecated or otherwise transferred any of law governing specific performanceits rights under any Contract to which it is a party, injunctive relief except pursuant to the Contribution Agreements. Each Seller’s or Newly-Formed LLC’s rights with respect to any such Contract are held free and clear of all Restrictions other equitable remediesthan Restrictions contained in such Contract.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholderson Schedule 4.6(c), no other Person has violated or breached, or committed written contracts between any default under, any Ibex Contract;
(ii) to the best Seller and its customers involving annual revenues in excess of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has $75,000 have been submitted or received by Ibex terminated since January 1, 19962009.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Master Acquisition Agreement (Chardan 2008 China Acquisition Corp.)
Contracts. (a) Part 2.10 As of the date hereof, except as set forth in Section 2.12 of the Disclosure Schedule identifiesSchedule, the Acquired Company is not (or had the Pre-Closing Transactions occurred prior to the date hereof, would not be) a party to any:
(i) each Ibex Contract relating agreement (or group of related written agreements with the same person or entity) for the lease of personal property from or to third parties providing for lease payments the employment ofremaining unpaid balance of which is in excess of $50,000, other than agreements that can be terminated by the Acquired Company on 90 or fewer days’ notice without payment by the performance Acquired Company of services by, any employee, consultant or independent contractormaterial penalty;
(ii) each Ibex Contract agreement (or group of related written agreements with the same person or entity) for the purchase or sale of products or the furnishing or receipt of services under which the undelivered balance of such products and services is in excess of $50,000, other than any purchase orders relating to the acquisition, transfer, use, development, sharing or license supply of any technology or any Proprietary Assetgoods and services to the Business in the Ordinary Course of Business;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) agreement for capital expenditures, which requires the Acquired Company to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal make aggregate future payments in any other manner with any other Person, or (C) develop or distribute any technologyexcess of $50,000;
(iv) each Ibex Contract creating agreement establishing a partnership or involving any agency relationship, distribution arrangement or franchise relationshipjoint venture;
(v) each Ibex Contract relating agreement (or group of related written agreements with the same person or entity) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness for borrowed money (other than intercompany indebtedness that will be eliminated prior to the acquisitionClosing) or under which it has imposed a Security Interest on any of its material assets, issuance tangible or transfer of any securitiesintangible;
(vi) each Ibex Contract relating to the creation of any Encumbrance agreement that contains exclusivity or non-competition restrictions with respect to the Acquired Company or otherwise prohibits the Business or the Acquired Company from competing in any asset line of Ibexbusiness anywhere in the world or geographic area;
(vii) each Ibex Contract involving contract or incorporating agreement with any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangementAffiliate of the Acquired Company;
(viii) each Ibex Contract creating agreement for the employment in the Business of any individual on a full-time or relating to any partnership or joint venture or any sharing part-time basis involving annual compensation in excess of revenues, profits, losses, costs or liabilities$100,000;
(ix) each Ibex Contract relating to individual severance, retention, “stay-pay” or termination agreement with any employee of the purchase or Business;
(x) agreement for the sale of any product assets or properties of the Acquired Company, other asset than agreements for the sale of goods and services in the Ordinary Course of Business and other than pursuant to the Pre-Closing Transactions; and
(xi) agreement for the acquisition by or to, or the performance Acquired Company of any services by operating business or forequity interests of any other person (other than pursuant to the Pre-Closing Transactions); provided, however, that Leases are not required to be disclosed in response to any Related Party provision of this Section 2.12 and shall not constitute Designated Contracts (as defined in Section 2.182.12(b);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex Parent has delivered made available to Castelle accurate Buyer a correct and complete copies copy of all written Contracts identified each agreement (as amended to the date of this Agreement) listed in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 Section 2.12 of the Disclosure Schedule provides an accurate description (the “Designated Contracts”). Each Designated Contract is a valid, binding and enforceable obligation of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, Acquired Company and, to Parent’s knowledge, of each other party thereto (except as the best foregoing may be limited by the Bankruptcy and Equity Exception), and there exists no defaults of the knowledge of Ibex and the Designated ShareholdersAcquired Company or, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default underParent’s knowledge, any Ibex Contractother party thereto, andexcept for any such failures to be valid, to the best of the knowledge of Ibex binding and the Designated Shareholders, no other Person has violated enforceable or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, defaults that (with or without notice or lapse of time) will, or could would not reasonably be expected to, (A) to result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Business Material ContractAdverse Effect.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Contracts. (a) Part 2.10 Section 3.18 of the Company Disclosure Schedule identifies:sets forth a true and complete list of each of the following contracts, agreements or other arrangements to which the Company is a party or by which any of its Assets and Properties is bound (and, to the extent oral, accurately describes the terms of such contracts, agreements and arrangements):
(i) each Ibex Contract relating to the employment of, all collective bargaining or the performance of services by, any employee, consultant or independent contractorsimilar labor agreements;
(ii) each Ibex Contract relating to all contracts for the acquisition, transfer, use, development, sharing or license employment of any technology officer, employee or any Proprietary Assetother person or entity on a full time, part time, consulting or other basis that are not terminable by the Company on less than 90 days’ notice by the Company;
(iii) each Ibex Contract imposing all loan agreements, indentures, debentures, notes or letters of credit relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other material asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technologymaterial group of assets of the Company;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationshipall guarantees of the obligations of third parties;
(v) each Ibex Contract relating except for contracts and legally binding commitments which have been disclosed anywhere in the Company Disclosure Schedule and for which a true and complete copy has been provided to Parent, all contracts and legally binding commitments which require the acquisitionCompany to pay more than $25,000 in the aggregate in any twelve-month period, issuance or transfer except for purchase and sales orders entered into in the Ordinary Course of any securitiesBusiness;
(vi) each Ibex Contract relating except for contracts and legally binding commitments which have been disclosed anywhere in the Company Disclosure Schedule and for which a true and complete copy has been provided to Parent, all contracts or legally binding commitments that in any way restrict the creation of any Encumbrance with respect to any asset of IbexCompany from carrying on its business anywhere in the world as it is currently conducted;
(vii) each Ibex Contract involving all Inbound License Agreements, Outbound License Agreements, collaboration, research and development, co-promotion, marketing or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;other similar agreements; and
(viii) each Ibex Contract creating all contracts or relating to legally binding commitments that in any partnership or joint venture way grant a third party a right of first refusal for the purchase of the Company or any sharing of revenues, profits, losses, costs its Assets or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material ContractsProperties.")
(b) Ibex has delivered to Castelle accurate A correct and complete copies copy of all written Contracts identified each contract or agreement disclosed in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Company Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written formhas been previously provided to Parent. Each Contract identified contract or agreement disclosed in Part 2.10 of the Company Disclosure Schedule is valid and in full force and effecteffect and constitutes a legal, andvalid and binding agreement, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject of the Company, and to (i) laws the Knowledge of general application relating to bankruptcythe Company, insolvency the other parties thereto; and the relief Company has performed in all material respects all of debtorsits required obligations under, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth is not in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has such contract or agreement. To the Knowledge of the Company, the other parties to any such contract or agreement are not waived any in violation or breach of its material rights or default under any Material Contractsuch contract or agreement.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Neurobiological Technologies Inc /Ca/)
Contracts. (a) Part 2.10 Section 3.9(a) of the Company Disclosure Schedule identifies:identifies each material license agreement, development agreement, manufacturing agreement, distribution agreement, OEM agreement or other agreement to which the Company is a party.
(b) (i) each Ibex Contract relating The Company has no agreements, contracts or commitments that call for prospective fixed and/or contingent payments or expenditures by or to the employment of, or Company of more than $25,000 other than those entered into in the performance ordinary course of services by, any employee, consultant or independent contractorits business concerning the sale of Company Products;
(ii) each Ibex Contract relating to The Company has no purchase agreement, contract or commitment that calls for fixed and/or contingent payments by the acquisitionCompany that are in excess of the normal, transfer, use, development, sharing or license ordinary and usual requirements of any technology or any Proprietary Assetthe Company's business;
(iii) each Ibex Contract imposing any restriction on Ibex's right There is no outstanding sales contract, commitment or ability proposal (Aincluding, without limitation, development projects) of the Company that is reasonably likely to compete with any other Personresult, (B) to acquire any product either individually or other asset or any services from any other Personin the aggregate, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, Material Adverse Change to the Company upon completion or (C) develop or distribute any technologyperformance thereof;
(iv) each Ibex Contract creating The Company has no outstanding agreements, contracts or involving commitments with officers, employees, agents, consultants, advisors, salesmen, sales representatives, distributors or dealers that are not cancelable by it on notice of not longer than thirty days and without liability, penalty or premium exceeding $25,000 in any agency relationship, distribution arrangement single instance or franchise relationship$50,000 in the aggregate;
(v) each Ibex Contract relating to the acquisitionThe Company has not entered into any employment, issuance independent contractor or transfer similar agreement, contract or commitment that is not terminable on not more than thirty days' notice without penalty or liability of any securitiestype, including without limitation severance or termination pay;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of IbexThe Company has no collective bargaining or union agreements, contracts or commitments;
(vii) each Ibex Contract involving The Company is not restricted by agreement from competing with any person, from carrying on its business anywhere in the world or incorporating otherwise operating its business in any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangementmanner it deems appropriate;
(viii) each Ibex Contract creating The Company has not guaranteed any obligations of other Persons or relating made any agreements to acquire or guarantee any partnership or joint venture or any sharing obligations of revenues, profits, losses, costs or liabilities;other Persons; and
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (Except as defined provided in Section 2.18);
(x3.9(b) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Company Disclosure Schedule, including all amendments thereto. Part 2.10 the Company has no outstanding loan or advance to any Person nor is it party to any line of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effectcredit, andstandby financing, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and revolving credit or other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach similar financing arrangement of any of sort that would permit the provisions borrowing by the Company of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contractsum.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Contracts. (a) Part 2.10 Section 3.9(a) of the Company Disclosure Schedule identifiesidentifies each Contract to which any Acquired Company is a party, or by which it is bound, that constitutes a Material Contract as of the date of this Agreement. For purposes of this Agreement, each of the following to which any Acquired Company is a party or by which it is bound as of the date of this Agreement constitutes a “Material Contract”:
(i) each Ibex any Contract relating that is a settlement, conciliation or similar Contract with or approved by any Governmental Body and pursuant to which (A) an Acquired Company will be required after the employment ofdate of this Agreement to pay monetary obligations in excess of $100,000 or (B) that contains material obligations or limitations on such Acquired Company’s conduct;
(ii) any Contract (A) that purports to materially limit the freedom or right of any Acquired Company to engage in any line of business or to compete with any other Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by any Acquired Company, (C) containing exclusivity obligations or otherwise purports to materially limit the freedom or right of any Acquired Company to sell, distribute or manufacture any products or services for any other Person, or (D) imposing a restriction on the performance of services byright or ability to solicit, hire or retain any Person as an employee, consultant or independent contractor;
(ii) each Ibex Contract relating , or to the acquisition, transfer, use, development, sharing or license of perform services for any technology or any Proprietary Assetother Person;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business requires by its terms or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) is reasonably expected to require the payment or delivery of cash or other consideration to any Acquired Company in an amount or having a an expected value in excess of $10,000 1,000,000 in the aggregatefiscal year ending December 31, 2023 or (B) the performance of services by any Acquired Company in an amount having a an expected value in excess of $10,000 500,000 in the aggregate. fiscal year ending December 31, 2023 (other than Contracts or policies with respect to insurance) and in each case which cannot be cancelled by such Acquired Company without penalty or further payment without more than ninety (90) days’ notice;
(iv) any Contract relating to Indebtedness in excess of $250,000 (whether incurred, assumed, guaranteed or secured by any asset) of any Acquired Company;
(v) any Contract with any Person constituting a joint venture, collaboration, partnership or similar profit sharing arrangement;
(vi) any Contract (excluding any Employee Plan) that by its express terms requires an Acquired Company, or any successor to, or acquirer of, an Acquired Company, to make any payment to another Person as a result of a change of control of such Acquired Company (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(vii) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the capital stock, ordinary shares or other equity interests of an Acquired Company, the pledging of the capital stock, ordinary shares or other equity interests of an Acquired Company or the issuance of any guaranty by an Acquired Company;
(viii) any (A) In-bound License and (B) Out-bound License;
(ix) each Contract related to the acquisition or divestiture of a business or material assets that contains continuing representations, covenants, indemnities or other obligations (including “earn-out” or other contingent payment obligations);
(x) any stockholders, investors rights, registration rights or similar Contract;
(xi) except for Contracts entered into in the respective categories described ordinary course of business and not otherwise material to the Company, any Contract which provides for a loan or advance of any amount to any employee of the Company or any temporary agency employee, consultant or other independent contractor of the Acquired Companies;
(xii) any Contract that relates to any swap, forward, future, or other similar derivative transaction with a notional value in clauses "(i)" through "excess of $250,000;
(xiii) any Contract that provides for indemnification by any Acquired Company of any current or former officer, director or employee;
(xiv) any Government Contract;
(xv) any material Real Property Lease;
(xvi) any other Contract that is currently in effect and has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;
(xvii) any collective bargaining agreement or other Contract with any labor organization;
(xviii) any Contract for the employment of any individual with any Acquired Company with base salary in excess of $250,000 per annum that is not terminable upon notice of thirty (30) days or less;
(xix) any Contract providing for the retention, engagement or termination of any temporary agency employee, consultant or other independent contractor of any Acquired Company with compensation or payments in excess of $100,000 per annum that is not terminable upon notice of thirty (30) days or less;
(xx) any Contract entered into by any Acquired Company since January 1, 2021, for the settlement of any Legal Proceeding that has not been satisfied or discharged in full (other than a release of claims)" above are referred ;
(xxi) any other Contract, if a breach or termination of such Contract would reasonably be expected to have or result in this Agreement as "a Material ContractsAdverse Effect.")
(b) Ibex As of the date of this Agreement, the Company has either delivered or made available to Castelle Parent an accurate and complete copies copy of all written Contracts identified each Material Contract or has publicly made available such Material Contract in Part 2.10 the ▇▇▇▇▇ database of the Disclosure ScheduleSEC. No Acquired Company nor, including all amendments thereto. Part 2.10 to the Knowledge of the Disclosure Schedule provides an accurate description Company, the other party to a Material Contract is in material breach of, or material default under, any Material Contract and no Acquired Company, or to the Knowledge of the terms Company, the other party to a Material Contract has taken or failed to take any action that with or without notice, lapse of each Ibex Contract that is not in written formtime or both would constitute a material breach of or material default under any Material Contract. Each Material Contract identified in Part 2.10 is, with respect to the Acquired Companies and, to the Knowledge of the Disclosure Schedule is Company, the other party, a valid and binding agreement in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, except as such enforcement may be subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application applicability relating to bankruptcy, insolvency and the relief of debtorsor affecting creditors’ rights, and (ii) rules of law governing specific performanceby general equitable principles. Since January 1, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of 2021, the Disclosure Schedule:
(i) Ibex has Acquired Companies have not violated received or breached, or committed delivered any default under, written notice regarding any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a material violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex that has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreementsince been cured.
Appears in 1 contract
Sources: Merger Agreement (Bsquare Corp /Wa)
Contracts. Schedule 4.20 lists and briefly describes all --------- contracts, purchase orders, agreements, leases, executory commitments, arrangements and understandings (written or oral) to which Smileage is a party (a) Part 2.10 which, including all amendments and supplements thereto, are material to the condition, operations, assets or business of the Disclosure Schedule identifies:
Smileage, (b) which (i) each Ibex Contract relating to the employment of, involve payments or the performance of services by, any employee, consultant or independent contractor;
(ii) each Ibex Contract relating to the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value commitments in excess of $10,000 in the aggregate25,000 for any purchase order or $25,000 for any other contract, agreement, lease, commitment, arrangement, or understanding, or (Bii) extend beyond one year (or both), unless cancelable on 60 or fewer days' notice without any liability, penalty or premium, (c) with any present or former stockholder, director or officer of Smileage, or any person related by blood or marriage to any such person or any person or entity controlling, controlled by or under common control with any such person, or with any employee, agent or consultant of Smileage not terminable at will, (d) which provide for a discount from Smileage's standard fee schedules, (e) which provide for the future purchase by Smileage of any materials, equipment, services or supplies, which continue for a period of more than 12 months (including periods covered by any option to renew by either party) or which provide for a price materially in excess of current market prices or is in excess of normal operating requirements over its remaining term, or (f) which involve any of the following: (i) any borrowings or guarantees; (ii) any contracts containing covenants purporting to limit the freedom of Smileage to compete in any line of business or provide any of their services in any geographic area; (iii) any obligation or commitment which limits the freedom of Smileage to sell, lease, license or otherwise provide its services; (iv) any contract or agreement the performance of services having which can reasonably be expected to result in a value in excess loss to Smileage; or (v) any obligation or commitment providing for indemnification or responsibility for the obligations or losses of $10,000 in the aggregateany person. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above All of such contracts, agreements, leases, commitments, and other arrangements and understandings are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and binding, in full force and effect, and, to the best of the knowledge of Ibex effect and the Designated Shareholders, is enforceable by Ibex in accordance with its termstheir respective provisions. Smileage is not in violation of nor in default in respect of nor has there occurred an event or condition which, subject to with the passage of time or giving of notice (ior both) laws would constitute a default of general application relating to bankruptcyany such contract, insolvency and the relief of debtorsagreement, and (ii) rules of law governing specific performancelease, injunctive relief and other equitable remedies.
(c) commitment, arrangement or understanding. Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breachedSchedule 4.20, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex Smileage has not received any written notice or or, to the knowledge of the Smileage Shareholders, any other communication regarding notice from any actual or possible violation or breach ofthird party payor, patient, or default undersupplier to the effect that such third party payor, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiatingpatient, or has a right pursuant to the supplier will terminate its relationship or unilaterally modify any terms of any Ibex Contract to renegotiatethat relationship, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bidwhere applicable, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid Smileage as a result of or any transaction contemplated by virtue of (A) the execution, delivery of performance of this Agreement or any otherwise. Attached to Schedule 4.20 is a correct and complete copy of the other agreements referred fee schedule which is currently in effect under each agreement with a third party payor to in this Agreement, which Smileage is a party. Also attached to Schedule 4.20 is a correct and complete list of all dentists employed or (B) the consummation of the Merger or any of the other transactions contemplated retained by this AgreementSmileage.
Appears in 1 contract
Contracts. (a) Part 2.10 Attached as Schedule 5.8(a) is a list of all real -------- ------ property leases in effect on the date of this Agreement pursuant to which any RECI Company leases real property (the "Real Property Leases"); ---- -------- ------
(b) Attached as Schedule 5.8(b) is a list of all personal -------- ------ property leases to which any RECI Company is a party as of the Disclosure date of this Agreement, other than any such lease that was entered into in the ordinary course of business prior to the date of this Agreement and does not require payments of more than $50,000 per annum and any project-specific personal property leases included in the contracts referred to in paragraph (c) below;
(c) Attached as Schedule identifies5.8(c) is a list of all the -------- ------ contracts, bids, subcontracts and other agreements outstanding as of the date of this Agreement for the provision or prospective provision by any RECI Company of engineering, design, procurement, construction, operation, maintenance or other services (collectively, the "E&C Services"), other than: --- --------
(i) contracts, subcontracts and other agreements for the provision or prospective provision by any RECI Company of any E&C Services entered into in the ordinary course conduct of the Purchased Business that do not involve the payment to or by any RECI Company of more than $500,000 and do not provide for compensation on a fixed fee or lump sum basis;
(ii) in addition to the bids listed in Schedule -------- 5.8(c), any bids for the provision or prospective provision by any RECI ------ Company of any E&C Services outstanding on the date of this Agreement and made in the ordinary course conduct of the Purchased Business that do not (including the contract contemplated by such bid) involve the payment to or by any RECI Company of more than $500,000 or provide for compensation on a fixed fee or lump sum basis; and
(iii) in connection with the contracts, bids, subcontracts and agreements listed in Schedule 5.8(c) or described in -------- ------ any of (i) or (ii) above, all related purchase orders, completed and uncompleted job orders, change orders, extra work orders, amendments, modifications, subcontracts and similar agreements, and any ancillary contracts entered into in connection with such contracts, subcontracts and agreements, such as project-specific hedging or currency swap agreements and any services agreements (other than any agency or representative agreement).
(d) Except as set forth on Schedule 5.8(d) or listed on -------- ------ Schedule 5.8(c), as of the date of this Agreement none of the RECI Companies is -------- ------ a party to any joint venture or consortium agreements other than any such agreements that are no longer binding on any RECI Company.
(e) Except as listed on Schedule 5.8(e) (the "Listed -------- ------ ------ Confidentiality Agreements"), as of the date of this Agreement none of the RECI --------------- ---------- Companies are party to any confidentiality or secrecy agreements other than any confidentiality or secrecy agreements entered into in the ordinary course operation of the Purchased Business or that are no more restrictive than any of the agreements listed on Schedule 5.8(e) and other than any such agreements that -------- ------ are no longer binding on any RECI Company.
(f) Except for (A) the contracts, agreements and other arrangements referred to in Sections 5.8(a)-(e), (B) the ERISA Plans and Non-ERISA Plans (as defined in Section 5.20), (C) the Support Agreements (as defined in Section 8.8), (D) the agreements listed in Schedule 5.12(b), (E) the contracts, agreements and -------- ------- other arrangements listed or described on Schedule 5.8(f), (E) the Retained RECI -------- ------ Contracts and Retained Risk E&C Contracts, (F) the contracts and other arrangements listed in Schedule 7.12, (G) any guarantee by a RECI Company of the -------- ---- obligations of another RECI Company of any of the contracts, agreements or other arrangements referred to in the foregoing clauses (A) through (F), and (H) any contracts, agreements or other arrangements that have been fully performed and with respect to which no RECI Company has any further obligations or liabilities, as of the date of this Agreement no RECI Company is a party to or otherwise bound by any:
(i) each Ibex Contract mortgage, indenture, note, installment obligation or other instrument relating to the employment ofborrowing of money;
(ii) guarantee of any obligation or any letter of credit or bond (excluding endorsements of instruments for collection in the ordinary course of the operation of their business);
(iii) offset, countertrade, distributor, sales representative or sales agency (including any foreign agents or representatives) agreement;
(iv) agreement for the sale or lease of any of its assets requiring the payment of more than $250,000;
(v) agreement requiring the payment by such RECI Company of more than $250,000 for the purchase or lease of any real estate, machinery, equipment or other capital assets;
(vi) contract, agreement, legal commitment or proposal for the sale of products or the performance of services by, any employee, consultant or independent contractor;
(ii) each Ibex Contract relating which would involve payment to the acquisition, transfer, use, development, sharing or license such RECI Company of any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibexmore than $1,000,000;
(vii) each Ibex Contract involving personal property lease with an annual rent of $50,000 or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangementmore and an original term of more than one year;
(viii) each Ibex Contract creating real property lease or relating to any partnership sublease (as lessee, lessor, sublessee or joint venture or any sharing of revenues, profits, losses, costs or liabilitiessublessor);
(ix) each Ibex Contract relating contract or agreement requiring such RECI Company to the purchase all or sale substantially all of any its requirements for a particular product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18)from a supplier;
(x) each Ibex Contract constituting except for the standard form of employee confi- dentiality agreement that the RECI Companies attempt to enter into with respect to all of their employees (the current form of which is included as part of Schedule 5.8(f)), (A) employment agreement, (B) -------- ------ consulting agreement, (C) agreement providing for severance payments or relating (D) agreement providing for any rights or benefits (whether or not optional or subject to a Government Contract other conditions) in the event of the sale or Government Bidother change in control of such RECI Company or sale of all or substantially all of its assets;
(xi) contract or other agreement with any current or former officer, director, employee or consultant of such RECI Company or any other Ibex Contract that was entered into outside member of the ordinary course Raytheon Group (other than as set forth in Schedule 5.20 or Schedule 5.21) or any present or former shareholder of business -------- ---- -------- ---- such RECI Company (other than another RECI Company or was inconsistent a member of the Raytheon Group) or with Ibex's past practicesany partnership, corporation, joint venture or any other entity in which any such Person has a material interest;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; andjoint venture or similar agreement;
(xiii) any other Ibex Contract that contemplates agreement imposing non-competition or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contractexclusive dealing obligations on such RECI Company;
(iixiv) to the best any tax-sharing or other contract or agreement between any RECI Company and any other member of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that Raytheon Group (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contractother than another RECI Company);
(iiixv) since December 31contract or agreement that is material to the Purchased Business as a whole and that was not entered into in the ordinary course operation of the business of such RECI Company;
(xvi) take-or-pay agreement;
(xvii) contract, 1992agreement or arrangement granting to any Person any preferential rights to purchase any assets or services from such RECI Company;
(xviii) contract or agreement pursuant to which such RECI Company provides or has provided consulting or remediation services with respect to the Year 2000 problem;
(xix) project specific hedging or currency swap agreement; or
(xx) contract, Ibex has not received agreement or arrangement obligating such RECI Company to make any notice equity investment in any Person, to make payments to develop any project or other communication regarding any actual to provide, or possible violation or breach arrange for the provision of, or default under, financing for any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996project.
(g) Part 2.10 The Sellers have delivered, made available or offered to make available to the Buyer correct and complete copies (or in the case of the Disclosure Schedule provides an any oral contracts, agreements or arrangements, summaries that are accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(hall material respects) of the Disclosure Scheduleeach contract, Ibex has not entered into and is not negotiating any Government Contract agreement or Government Bidother arrangement, and Ibex is not and will not be required as amended to make any filing with or give any notice todate, or to obtain any Consent fromlisted in Schedules 5.8 (a), any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.--------- -------
Appears in 1 contract
Contracts. (a) Part 2.10 Except with respect to Contracts solely among the Company and any wholly owned Company Subsidiary or Company Subsidiaries, or solely among any wholly owned Company Subsidiaries, Section 4.17(a) of the Company Disclosure Schedule identifiesLetter sets forth, as of the date of this Agreement, a true and complete list of:
(i) each Ibex Contract relating to “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the employment of, or the performance of services by, any employee, consultant or independent contractorSecurities Act);
(ii) each Ibex non-competition Contract relating or similar Contract containing terms that expressly limit or otherwise restrict the ability of the Company or any Company Subsidiary to compete in any line of business or in any geographic area, in a manner that would be reasonably likely to be material to the acquisitionCompany and the Company Subsidiaries, transfer, use, development, sharing or license of any technology or any Proprietary Assettaken as a whole;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product loan and credit agreement or other asset Contract pursuant to which any Indebtedness for borrowed money in excess of $5,000,000 of the Company or any services from any other Person, to sell any product Company Subsidiary is outstanding or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technologymay be incurred;
(iv) each Ibex Contract creating partnership, joint venture or involving similar agreement to which the Company or any agency relationshipCompany Subsidiary is a party relating to the formation, distribution arrangement creation, operation, management or franchise relationshipcontrol of any partnership or joint venture, in each case material to the Company and the Company Subsidiaries, taken as a whole, other than any customary joint operating agreements, unit agreements or participation agreements affecting the Oil and Gas Properties of the Company or any Company Subsidiary;
(v) each Ibex Contract relating joint development agreement, exploration agreement, participation, farmout, farmin or program agreement or similar contract requiring the Company or any of its Subsidiaries to make expenditures that would reasonably be expected to be in excess of $5,000,000 in the acquisitionaggregate during the 12-month period following the date of this Agreement, issuance or transfer of any securitiesother than customary joint operating agreements and continuous development obligations under Oil and Gas Leases;
(vi) each Ibex Contract relating to the creation of for any Encumbrance with respect to any asset of Ibexmaterial Derivative Transaction;
(vii) each Ibex any Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity that provides for the sale by the Company or any surety arrangementof the Company Subsidiaries of Hydrocarbons that (A) has a remaining term of greater than 60 days and does not allow the Company or such Company Subsidiary to terminate it without penalty on 60 days’ notice, or (B) contains a “take-or-pay” clause or any similar material prepayment or forward sale arrangement or obligation (excluding “gas balancing” arrangements associated with customary joint operating agreements) to deliver Hydrocarbons at some future time without then or thereafter receiving full payment therefor;
(viii) other than in the ordinary course, each Ibex Contract creating or relating to any partnership or joint venture which the Company or any sharing Company Subsidiary is a party involving the future disposition or acquisition of revenues, profits, losses, costs assets or liabilitiesproperties with a fair market value in excess of $5,000,000;
(ix) each Ibex Contract relating that is a transportation or processing agreement to which the purchase Company or sale any Company Subsidiary is a party involving the transportation or processing of any product or other asset by or tomore than 50 MMcf of gaseous Hydrocarbons per day, or the performance 5,000 barrels of any services by or for, any Related Party (as defined in Section 2.18)liquid Hydrocarbons per day;
(x) each Ibex Contract constituting to which the Company or relating to any Company Subsidiary is a Government Contract party for the purchase, sale or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course option of business minerals or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or mineral rights having a value in excess of $10,000 5,000,000;
(xi) each Contract with any supplier or vendor under which the Company or any Company Subsidiary is obligated to purchase goods or services (other than transportation or processing services) involving consideration in excess of $5,000,000 (except with respect to the purchase of items of inventory in the ordinary course of business consistent with past practice) or that is not terminable without penalty upon notice of 90 days or less;
(xii) each Collective Bargaining Agreement to which the Company or any of its Subsidiaries is a party or is subject;
(xiii) each Contract involving the pending acquisition or sale of (or option to purchase or sell) assets or properties of the Company or its Subsidiaries, taken as a whole, having a purchase price in excess of $5,000,000, other than contracts involving the acquisition or sale of (or option to purchase or sell) Hydrocarbons in the ordinary course of business;
(xiv) each Contract for lease of personal property or real property (other than Oil and Gas Properties) involving aggregate payments in excess of $15,000,000 in any calendar year that are not terminable without penalty within 60 days, other than contracts related to drilling rigs;
(xv) each Contract under which the Company or any of its Subsidiaries has advanced or loaned any amount of money to any of the following: (x) an executive officer or director of the Company or any Subsidiary of the Company; (y) a beneficial owner (within the meaning of Section 13(d) of the Exchange Act) of 5% or more of the Company Common Shares; or (z) an Affiliate, “associate” or member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the Exchange Act) of any of the Persons described in the foregoing clauses (x) or (y);
(xvi) each Contract that contains any “most favored nation” or most favored customer provision, call or put option, preferential right or right of first or last offer, negotiation or refusal, in each case other than those contained in (A) any agreement in which such provision is solely for the benefit of the Company or any of the Company Subsidiaries, (B) customary royalty pricing provisions in Oil and Gas Leases or (C) customary preferential rights in joint operating agreements, unit agreements or participation agreements affecting the business or the Oil and Gas Properties of the Company or any of the Company Subsidiaries, to which the Company or any of the Company Subsidiaries or any of their respective Affiliates is subject, and is material to the business of the Company and its Subsidiaries, taken as a whole; and
(xvii) each Contract relating to a Company Related Party Transaction. Each Contract of the type described in this Section 4.17(a) is referred to herein as a “Company Material Contract.”
(b) A complete and correct copy of each of the Company Material Contracts existing as of the date of this Agreement has been made available to Parent prior to the date hereof. Except for matters which, individually or in the aggregate, or (B) the performance of services having have not had and would not reasonably be expected to have a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "Company Material Adverse Effect, (i)" through "(xiii)" above are referred to in this Agreement as ") each Company Material Contracts.")
(b) Ibex has delivered to Castelle accurate Contract is a valid, binding and complete copies of all written Contracts identified in Part 2.10 legally enforceable obligation of the Disclosure Schedule, including all amendments thereto. Part 2.10 Company or one of the Disclosure Schedule provides an accurate description of Company Subsidiaries, as the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effectcase may be, and, to the best Knowledge of the knowledge Company, of Ibex the other parties thereto, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Laws affecting creditors’ rights generally and the Designated Shareholdersby general principles of equity, (ii) each such Company Material Contract is enforceable by Ibex in full force and effect (except for expiration in accordance with its terms, subject to (ithe terms thereof) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (iiiii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of neither the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed Company nor any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that Company Subsidiary is (with or without notice or lapse of time) will, or could both) in breach or default under any such Company Material Contract and, to the Knowledge of the Company, no other party to any such Company Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or its Subsidiaries, or, to the Knowledge of the Company, any other party thereto. There are no disputes pending or, to the Knowledge of the Company, threatened with respect to any Company Material Contract and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any other party to any Company Material Contract to terminate for default, convenience or otherwise any Company Material Contract, nor to the Knowledge of the Company, is any such party threatening to do so, in each case except as has not had or would not reasonably be expected toto have, (A) result in a violation individually or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conductedaggregate, a Company Material Adverse Effect.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Contracts. (a) Part 2.10 of the Disclosure Schedule identifies:
(i) each Ibex Contract relating to the employment of, or the performance of services by, any employee, consultant or independent contractor;
(ii) each Ibex Contract relating to the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 the Schedule 3.19 hereto, as of the Disclosure Schedule:
Initial Closing Date, the Company is not a party to any written or oral: (i) Ibex has not violated pension, profit sharing, stock option, employee stock purchase or breached, other plan providing for deferred or committed other compensation to employees or any default under, other employee benefit plan or any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed contract with any default under, any Ibex Contract;
labor union; (ii) contract relating to the best borrowing of money or the mortgaging, pledging or otherwise placing a lien on any asset of the knowledge of Ibex and the Designated ShareholdersCompany, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31contract pursuant to which the Company is lessor of or permits any third party to hold or operate any property, 1992real or personal, Ibex has not received any notice owned or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contractcontrolled by the Company; and
(iv) Ibex has not waived warranty contract (other than its standard form of warranty contract or otherwise delivered to counsel to CA) with respect to its services rendered or its products sold or leased; (v) contract or non-competition provision in any contract prohibiting it from freely engaging in any business or competing anywhere in the world; (vi) employment, consulting, sales, commissions, advertising or marketing contracts (other than its standard form of its material rights under any Material Contract.
such agreements or otherwise delivered to counsel to CA); (dvii) No Person is renegotiating, contracts providing for "take or has a right pursuant to pay" or similar unconditional purchase or payment obligations; or (viii) contract that requires the terms consent of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or party in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of or performance of this Agreement or any the Transaction Documents.
(b) The Company's subsidiary, LVL Communications Corporation, reorganized pursuant to Chapter Eleven of the other agreements referred to Bankruptcy Code following the approval of a Plan of Reorganization, without creditor objection, on April 16, 1998, by the United States Bankruptcy Court for the Northern District of California (such reorganization, together with all proceedings in this Agreementconnection therewith, or (B) the consummation "Bankruptcy"). Since July 17, 1998, the date upon which LVL became a wholly owned subsidiary of the Merger Company, the Company has not been, and currently is not in default in any respect under or in breach of nor in receipt of any claim of default or breach under any material contract to which the Company is subject (including without limitation all performance bonds, warranty obligations or otherwise); no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of non-compliance under any material contract to which the Company is subject (including without limitation all performance bonds, warranty obligations or otherwise); the Company does not have any present expectation or intention of not fully performing all such obligations; the Company does not have any knowledge of any breach or anticipated breach by the other transactions contemplated by this Agreementparties to any such contract to which it is a party.
Appears in 1 contract
Sources: Series D Preferred Stock Purchase Agreement (I Storm Inc)
Contracts. Section 3.9 of the Seller Disclosure Letter contains a complete and accurate list of all Contracts to which an Acquired Company, Seller or any Selling Subsidiary (with respect to the Seller and the Selling Subsidiary, to the extent the Contract is included in the Marine Assets) is a party as of the date hereof: (a) Part 2.10 for the future sale of products or services with expected payments in excess of $2,000,000 during the remaining term; (b) for the future purchase of products or services with expected payments in excess of $2,000,000 during the remaining term except for any such Contract that may be canceled on not more than 90 days’ notice without any penalty or other liability to the Business in excess of $100,000; (c) for the lease of any real property, (d) establishing or governing the management of any partnership, joint venture or similar arrangement, or acquisition or disposal of any joint ventures or similar arrangement, (e) that require the Business to deal exclusively with the counterparty or that limit the ability of the Disclosure Schedule identifies:
(i) each Ibex Contract relating to the employment of, or the performance of services by, any employee, consultant or independent contractor;
(ii) each Ibex Contract relating to the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) Business to compete with any other Person, (B) to acquire in any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services geographic market; (f) for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer lease of any securities;
personal property involving annual lease payments in excess of $50,000 per year; (vig) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase of any business or Person (or all or any substantial portion of the assets of any business, business unit, facility or Person) under which any Acquired Company has (or after the closing, Buyer would have) any continuing material liability or obligation, (h) relating to the sale or disposition of any material assets of the Business (other than the sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined Inventory in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business consistent with past practice or was inconsistent obsolete or worn-out Business Assets replaced in the ordinary course of business consistent with Ibex's past practices;
practice) under which any Acquired Company has (xiior after the Closing, Buyer would have) any other Ibex Contract that has a term continuing material liability or obligation; (i) relating to any employment, consulting or similar agreement requiring payment by the Business of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates annual fees or involves (A) the payment or delivery of cash or other consideration in an amount or having a value compensation in excess of $10,000 in 150,000 to any Person; (j) with any Major Business Partner (other than (A) purchase order contracts with any such Major Business Partner for the aggregate, future sale or purchase of products with expected payments of less than $2,000,000 or (B) confidentiality agreements with any such Major Business Partner); (k) evidencing Business Indebtedness, and (l) providing for capital expenditures after the performance of services having a value date hereof in excess of $10,000 100,000, individually or in the aggregate. The Real Property Leases and the Contracts listed (Contracts or required to be listed) in Section 3.9 of the respective categories described in clauses "(i)" through "(xiii)" above Seller Disclosure Letter are referred to in this Agreement collectively herein as "Material the “Significant Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex ” Each Significant Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and binding and is in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex effect in accordance with its terms, subject to (i) laws the terms of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) such Significant Contract. Except as set forth in Part 2.10 Section 3.9 of the Seller Disclosure Schedule:
(i) Ibex has not violated Letter, there is no material default or breached, or committed claim of material default under any default under, any Ibex Significant Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurredoccurred that, and no circumstance with the passage of time or condition exists, that (with or without the giving of notice or lapse of time) willboth, would constitute a material default by Seller, an Acquired Company or any Selling Subsidiary or, to Seller’s Knowledge, any other party thereto under any Significant Contract, or could reasonably be expected towould permit any material modification, (A) acceleration, or termination of any Significant Contract, or result in the creation of any material Encumbrance (other than a violation or breach of Permitted Encumbrance) on any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material ContractBusiness Assets.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Purchase Agreement (Teleflex Inc)
Contracts. Schedule 3.12 sets forth a list of all of the following Contracts to which Seller is a party or by which it is bound (collectively, the “Material Contracts”):
(a) Part 2.10 Any Contract for the furnishing of services to or by Seller or otherwise related to the Business under the terms of which Seller: (A) is likely to pay or receive consideration of more than $50,000 in the aggregate during the calendar year ending December 31, 2014, or (B) is likely to pay or receive consideration of more than $25,000 in the aggregate over the remaining term of such Contract;
(b) Any agreement or plan, any of the Disclosure Schedule identifiesbenefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the Transactions or the value of any of the benefits of which will be calculated on the basis of any of the Transactions;
(c) Any agreement of warranty or any guaranty other than any agreement entered into in connection with (i) a lease, or (ii) any Contract for the furnishing of products or services to or by Seller entered into in the Ordinary Course of Business;
(d) Any Contract for the employment, severance or retention of any director, officer, employee, agent, shareholder, consultant or advisor of Seller or any other Contract with any director, officer, employee, agent, shareholder, consultant or advisor of Seller that provides for any severance, change in control, deferred compensation, retention, “stay put,” or “golden parachute” payments, termination of employment or expiration of such Contract upon consummation of the Transactions that does not, in each case, provide for termination at will by Seller, as applicable, without further cost or Liability to Seller;
(e) Any mortgages, indentures, guarantees, loans or credit agreements, security agreements, pledges or other agreements or instruments relating to the borrowing of money by Seller or extension of credit to Seller;
(f) Any Contracts that limit or restrict Seller, or any of its employees, from engaging in any business or competing with any Person, any Contracts that limit or restrict anyone other than Seller’s employees or consultants from competing with Seller or from soliciting or hiring employees of any other Entity, and any Contracts that require the Seller to offer a Person terms or concessions at least as favorable as those offered to one or more other Persons (including any “most favored nations” clauses);
(g) Any powers of attorney or comparable delegations of authority granted by Seller;
(h) Any Contract or commitment with any director, member, officer or owner of Seller (other than those set forth in Section 3.12(d));
(i) Any Contract that is a joint venture, partnership, or other agreement (however named) involving a sharing of profits, losses, costs, or liabilities;
(j) Any Contract or undertaking in an amount in excess of $50,000 annually not terminable without penalty, cost or Liability on notice not exceeding thirty (30) days;
(k) Any Contracts that are leases, rental or occupancy agreements, installment and conditional sale agreements, and other agreements 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 annually of less than $50,000);
(l) Any Contracts that are licensing agreements or other agreements with respect to (i) Intellectual Property in an amount exceeding $50,000 annually, and (ii) Software in an amount exceeding $50,000 annually;
(m) Any Contracts with any Governmental Entity in an amount exceeding $50,000 annually;
(n) Any Contracts between or among Seller and any director, officer, employee, shareholder, member, or owner of any Affiliate of Seller other than Contracts made in the Ordinary Course of Business on terms no less favorable than those that would have been obtained with a non-affiliated party;
(o) Any Contract that is a guaranteed fixed price environmental remediation Contract;
(p) Any Contract that was not made in the Ordinary Course of Business, with:
(i) each Ibex Contract relating to the employment of, Consequential or liquidated damages or other indemnity provisions that are not based upon Seller’s negligence in the performance of services by, any employee, consultant or independent contractorits services;
(ii) each Ibex Contract relating to the acquisitionFitness for purpose warranties or process, transfer, use, development, sharing efficacy or license of any technology or any Proprietary Asset;similar guarantees; or
(iii) each Ibex At-risk design/build, lump sum turn-key, or similar Contract imposing any restriction on Ibex's right risks or ability arrangements.
(Aq) In addition to compete with the foregoing, any other Personagreement, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract commitment that was entered into outside the ordinary course of business involves a commitment, expenditure, Liability or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")50,000; and
(br) Ibex has delivered Any other agreement, Contract or commitment that could reasonably be expected to Castelle have a Material Adverse Effect on Seller. Complete and accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure ScheduleAssigned Contracts, including all material amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written formand supplements, have been Made Available to Buyer. Each Assigned Contract identified in Part 2.10 is valid, is the legally binding obligation of the Disclosure Schedule Seller and Seller’s client and, to Seller’s Knowledge, is valid and in full force and effect, and, . Seller has duly performed its material obligations under each Assigned Contract to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject extent that such obligations to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) perform have accrued. Except as set forth on Schedule 3.12, neither Seller nor, to Seller’s Knowledge, any other party to an Assigned Contract with Seller, is in Part 2.10 breach, violation or default under (or is alleged to be in breach of the Disclosure Schedule:
(i) Ibex or default under), and Seller has not received notice that it has breached, violated or breached, or committed any default defaulted under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated terms or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach conditions of any of the provisions of Assigned Contracts in such a manner as would permit any Ibex Contract, (B) give other party to cancel or terminate any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex such Assigned Contract, or would permit any other party to seek material damages or other remedies (D) give for any Person or all of such breaches, violations or defaults, in the right to cancelaggregate). To Seller’s Knowledge, terminate no breach or modify any Ibex Contract;
default, or event which would (iii) since December 31with the passage of time, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or both) constitute a breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiatingAssigned Contract by any party or obligor thereto other than Seller has occurred or, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or performance thereof, will occur. In addition, no party to an Assigned Contract has provided notice of and, to Seller’s Knowledge, there is no plan, intention or indication of any contracting party to any Assigned Contract to cause the termination, cancellation or modification of such Assigned Contract or to reduce or otherwise change its activity thereunder so as to materially adversely affect the other agreements referred benefits derived or expected to in this Agreementbe derived therefrom by Seller or its applicable Subsidiary. There are no disputes pending or, or (B) the consummation of the Merger or to Seller’s Knowledge, threatened under any of the other transactions contemplated by this AgreementAssigned Contract.
Appears in 1 contract
Contracts. (a) Part 2.10 Section 3.9(a) of the Company Disclosure Schedule identifiesidentifies each Contract to which any Acquired Corporation is a party, or by which it is bound, that constitutes a Material Contract as of the date of this Agreement. For purposes of this Agreement, each of the following to which any Acquired Corporation is a party or by which it is bound as of the date of this Agreement constitutes a “Material Contract”:
(i) each Ibex any Contract relating that is a settlement, conciliation or similar agreement pursuant to which (A) an Acquired Corporation will be required after the employment of, date of this Agreement to pay any monetary obligations or the performance of services by, any employee, consultant (B) that contains material obligations or independent contractorlimitations on such Acquired Corporation’s conduct;
(ii) each Ibex Contract relating any Contract, including any manufacturing, supply or distribution agreement, that requires by its terms or is reasonably likely to the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) require the payment or delivery of cash or other consideration by or to any Acquired Corporation in an amount or having a an expected value in excess of $10,000 5,000,000 in the aggregatefiscal years ending December 31, 2017, December 31, 2018 or any fiscal year thereafter, and which cannot be cancelled by such Acquired Corporation without more than ninety (90) days’ notice without payment in excess of $1,000,000 as a result of such cancellation;
(iii) any Contract relating to Indebtedness in excess of $1,000,000 (whether incurred, assumed, guaranteed or secured by any asset) of any Acquired Corporation;
(iv) any Contract with any Person (A) constituting a material joint venture, partnership, collaboration or similar profit-sharing arrangement; (B) pursuant to which any Acquired Corporation is or may be required to pay milestones, royalties or other contingent payments based on the research, development, regulatory approval, sale, distribution or commercial manufacture of JCAR017 or JCARH125; or (C) under which any Acquired Corporation grants to any Person any right of first refusal, right of first negotiation or similar rights with respect to any Product or any material Intellectual Property; for purposes of this paragraph (a)(iv), JCAR017 and JCARH125 refer to such products, including the manufacturing process therefor, as used in clinical trials being conducted by the Company as of the date hereof;
(v) any Contract that by its express terms requires an Acquired Corporation, or any successor to, or acquirer of, an Acquired Corporation, to make any payment to another Person as a result of a change of control of any Acquired Corporation (a “Change-of-Control Payment”) or gives another Person a right to receive or elect to receive a Change-of-Control Payment, or terminate or modify in any material respect the terms of a material Contract as a result of a change of control of any Acquired Corporation;
(vi) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the capital stock of an Acquired Corporation, the pledging of the capital stock or other equity interests of an Acquired Corporation or the issuance of any guaranty by an Acquired Corporation;
(vii) any material Contract pursuant to which any Acquired Corporation is granted by a third party, or grants to a third party, a license or other rights to use Intellectual Property (other than any Contract (A) concerning commercially available software or other commercially available technology; or (B) in which grants of rights to use Intellectual Property are incidental to and not material to performance under such Contract) (each, an “IP Contract”);
(viii) any Contract that (A) materially limits the performance freedom or right of any Acquired Corporation or its Affiliates (or which, following the consummation of the Merger could materially restrict or purports to materially restrict the ability of the Surviving Corporation or Parent or any of their respective Affiliates) to engage in any line of business or to compete with any other Person in any location or line of business; (B) contains any “most favored nations” terms and conditions (including with respect to pricing) granted by any Acquired Corporation; (C) contains exclusivity obligations or restrictions or otherwise materially limits the freedom or right of any Acquired Corporation or its Affiliates to research, develop, sell, distribute or manufacture any products or services having or any technology or other assets to or for any other Person;
(ix) any acquisition or divestiture Contract that contains continuing representations, covenants, indemnities or other obligations (including “earn-out” or other contingent payment obligations);
(x) any Contract that relates to any swap, forward, futures, or other similar derivative transaction with a notional value in excess of $10,000 1,000,000;
(xi) any Contract with any Governmental Body involving payments to or from any Governmental Body in excess of $1,000,000, excluding such contracts with academic or medical centers supported by Governmental Bodies;
(xii) any other Contract that is currently in effect and has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act; and
(xiii) any Contract with any Affiliate, director, executive officer (as such term is defined in the aggregate. Exchange Act), Person holding 5% or more of the Shares, or, to the knowledge of the Company, any Affiliate (Contracts in other than the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material ContractsCompany) or immediate family member of any of the foregoing, other than any Contract with Parent or any of its Affiliates.")
(b) Ibex (i) As of the date of this Agreement, the Company has either delivered or made available to Castelle Parent or Parent’s Representatives an accurate and complete copies copy of all written Contracts identified each Material Contract or has publicly made available such Material Contract in Part 2.10 the Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) database of the Disclosure ScheduleSEC. (ii) No Acquired Corporation nor, including all amendments thereto. Part 2.10 to the knowledge of the Disclosure Schedule provides an accurate description Company, the other party is in material breach of, or material default under, any Material Contract and no Acquired Corporation, or to the knowledge of the Company, any other party to a Material Contract has taken or failed to take any action that with or without notice, lapse of time or both would constitute a material breach of or material default under any Material Contract or give the other party to any Material Contract the right to terminate or modify in any material respect the terms of each Ibex Contract that is not in written formsuch Material Contract. Each Material Contract identified in Part 2.10 is, with respect to the Acquired Corporations and, to the knowledge of the Disclosure Schedule is Company, the other party, a valid and binding agreement in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, except as such enforcement may be subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application applicability relating to bankruptcy, insolvency and the relief of debtorsor affecting creditors’ rights, and by general equitable principles. (iiiii) rules of law governing specific performanceSince January 1, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of 2017, the Disclosure Schedule:
(i) Ibex has Acquired Corporations have not violated or breached, or committed received any default under, written notice regarding any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a material violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex that has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreementsince been cured.
Appears in 1 contract
Contracts. (a) Part 2.10 Schedule 4.14 of the Company Disclosure Schedule identifies:
lists, as of the date of this Agreement, (i) each Ibex Contract relating to the employment ofCenter Lease, or the performance of services by, any employee, consultant or independent contractor;
(ii) each Ibex Contract relating to Contracts not made in the acquisitionOrdinary Course of Business, transfer, use, development, sharing or license of any technology or any Proprietary Asset;
(iii) each Ibex joint venture, partnership and other Contract imposing (however named) arising out of the conduct of the Continuing Businesses to which the Company or any restriction on Ibex's right Company Subsidiary is a party that involves a sharing of profits, losses, costs or ability (A) to compete Liabilities by the Company or the Company Subsidiaries with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating arising out of the conduct of the Continuing Businesses to which the Company or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to of the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect Company Subsidiaries is a party providing for payments to any asset Person (other than the Seller Parties) based on sales, purchases or profits other than Contracts or commitments that can or in reasonable probability will be completed within ninety (90) days of Ibex;
(vii) each Ibex Contract involving the Closing Date or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not can be terminated by Ibex within such ninety (90) day period without penalty) within 60 days after the delivery payment of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value penalty in excess of $10,000 25,000, and (v) all Contracts entered into by the Company or any Company Subsidiary in the aggregate, conduct of the Continuing Businesses that provide for an aggregate payment from the Company or (B) the performance of services having a value any Company Subsidiary in excess of $10,000 250,000 in any contract year other than (A) Contracts or commitments that can or in reasonable probability will be completed within ninety (90) days of the Closing Date or can be terminated within such ninety (90) day period without payment of a penalty in excess of $75,000, and (B) Contracts or commitments for goods and services purchased in the aggregate. (Contracts Ordinary Course of Business in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contractsamounts consistent with past practice.")
(b) Ibex has delivered With respect to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 each Contract set forth on Schedule 4.14 of the Company Disclosure Schedule, including all amendments thereto. Part 2.10 (i) the Contract is Enforceable (except as enforceability may be subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other Laws relating to or affecting the Disclosure Schedule provides an accurate description rights of the terms creditors, and general principles of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid equity) and in full force and effect, andand has not been terminated, canceled, amended or modified, (ii) the Contract will continue to be Enforceable (except as enforceability may be subject to the best effects of bankruptcy, insolvency, reorganization, moratorium or other Laws relating to or affecting the rights of creditors, and general principles of equity) following the consummation of the knowledge Transactions without material modification to the terms thereof, (iii) neither the Company nor any Company Subsidiary is in Breach of Ibex such Contract and the Designated Shareholders, is enforceable Seller has no Knowledge of any Breach by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtorsany other party thereto, and (iiiv) rules no party to the Contract has repudiated any provision of law governing specific performancethe Contract. To Seller’s Knowledge, injunctive relief there are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any amounts paid or payable to the Company or any Company Subsidiary under current or completed Contracts set forth in Schedule 4.14 of the Company Disclosure Schedule with any Person having the contractual or statutory right to demand or require such renegotiation and other equitable remediesno such Person has made written demand for such renegotiation. The Company has delivered or made available to Buyer true, correct and complete copies of each Contract set forth in Schedule 4.14 of the Company Disclosure Schedule and all amendments thereto.
(c) Except as for the Disposition Agreements set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure on Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h7.2(o) of the Company Disclosure Schedule, Ibex has not subject to delivery by Seller of certain written notices and confirmations to third parties, which notices and confirmations Seller shall duly provide prior to the Closing Date, each of the Disposition Agreements provides that the Company and the Company Subsidiaries shall be released from further obligations under such Disposition Agreements in the event that the Shares are purchased by Buyer. Attached hereto as Schedule 4.14(c) of the Company Disclosure Schedule are true, correct and complete copies of provisions of the Disposition Agreements (entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required prior to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (Athe date hereof) that govern the execution, delivery of performance of this Agreement or any release of the other agreements referred to in this Agreement, or (B) Company’s and the consummation of Company Subsidiaries’ obligations under the Merger or any of the other transactions contemplated by this AgreementDisposition Agreements.
Appears in 1 contract
Sources: Stock Purchase Agreement (Insight Health Services Holdings Corp)
Contracts. (a) All Contracts, including amendments thereto, required to be filed as an exhibit to any report of the Company filed pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K promulgated by the SEC have been filed.
(b) Part 2.10 3.8 of the Disclosure Schedule identifiescontains a list, as of the date of this Agreement, of each of the following Contracts to which an Acquired Company is a party, or by which any Acquired Company (or any assets or property thereof) is bound, in each case, as of the date hereof:
(i) each Ibex Contract relating that limits or restricts, in any material respect, the ability of the Acquired Companies to the employment of, compete in any geographic area or the performance line of services by, any employee, consultant or independent contractorbusiness;
(ii) each Ibex any joint venture, partnership, limited liability company agreement or other similar Contract relating to the acquisitionformation, transfercreation, useoperation, development, sharing management or license control of any technology joint venture, partnership or limited liability company, other than any Proprietary Assetsuch Contract solely between the Company and any of its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries;
(iii) each Ibex indemnification or employment Contract imposing any restriction on Ibex's right or ability (A) to compete with any director, officer or employee of the Acquired Companies, other Person, (B) to acquire any product than offer letters that provide for “at will” employment without severance or other asset post-termination compensation or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technologybenefits;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationshipevidencing Indebtedness;
(v) each Ibex Contract relating (A) under which any Acquired Company paid or received in excess of $350,000 in 2019, or is expected to the acquisition, issuance pay or transfer receive in excess of $350,000 in 2020; or (B) with any securitiesMaterial Customer;
(vi) each Ibex Contract relating material “single source” supply contract pursuant to the creation of any Encumbrance with respect which goods or materials are supplied to any asset of IbexAcquired Company from an exclusive source;
(vii) each Ibex Contract lease or rental contract involving personal property (and not relating primarily to real property) pursuant to which any Acquired Company is required to make rental payments in excess of $20,000 per year (excluding leases or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangementrental contracts for office equipment entered into in the ordinary course of business);
(viii) each Ibex Contract creating material consulting contract that is not terminable by an Acquired Company on notice of 90 days or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilitiesless;
(ix) each Ibex any Contract relating that grants any rights of first refusal, rights of first negotiation, right of first offer, or other similar rights to any Person with respect to the purchase or sale of any product material assets, rights or other asset by or to, or properties of the performance of any services by or for, any Related Party (as defined in Section 2.18)Acquired Companies;
(x) each Ibex any Contract constituting that (A) expressly obligates any Acquired Company (or, following the Closing, Parent or relating its Subsidiaries (including the Surviving Corporation and its Subsidiaries)) to conduct business with any third party on an exclusive basis, or (B) contains (1) “most favored nation”, “most favored customer”, “most favored supplier” or similar covenants to the counterparty of such Contract (other than any Contract with a Government Contract Governmental Entity with annual gross bookings that do not exceed $500,000), (2) take or Government Bidpay provisions (committing a person to buy a minimum quality of goods or services provided by another person) or (3) requirements provisions (committing a person to provide the quantity of goods or services required by another Person);
(xi) any Contract for the acquisition or disposition of any Person or any business unit, division or capital stock or other Ibex Contract equity interests thereof (whether by merger, sale of stock, sale of assets, or otherwise) or any material assets of the Acquired Companies, other than this Agreement, (A) since January 1, 2016 and that was entered into outside the ordinary course involves an asset value in excess of business $1,000,000 or was inconsistent with Ibex's past practices(B) pursuant to which any indemnification obligations remain outstanding (excluding indemnification obligations in respect of representations and warranties and covenants that survive indefinitely or for periods equal to a statute of limitations and excluding obligations to indemnify directors and officers pursuant to acquisition agreements);
(xii) any other Ibex Contract relating to any resolution or settlement of any Legal Proceeding, whether actual or, to the knowledge of the Company, threatened in writing, involving any Acquired Company that (A) imposes continuing material obligations upon the operation of any of the Acquired Companies or (B) that has a term resulted in, or would reasonably be expected to result in, payments by the Acquired Companies in excess of more than 60 days and $250,000 individually or, to the extent that may not be terminated by Ibex (without penalty) within 60 days after multiple resolutions or settlements relate to the delivery of a termination notice by ▇▇▇▇; andsame Legal Proceeding, in the aggregate, with respect to all such resolutions or settlements;
(xiii) any other Ibex Contract that contemplates constitutes a material agreement the primary purpose of which is a guarantee of obligations, indemnification or involves assumption of Liabilities of any other Person;
(xiv) any Contract requiring a future capital commitment or capital expenditure; and
(xv) any Contract pursuant to which any Acquired Company has agreed to provide any third party with access to source code for any Company Software, or to provide for such source code to be put in escrow or a similar arrangement, or otherwise grants a license to such source code, for the benefit of a third party (including upon the occurrence of specified events) (each (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregateContract listed, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred required to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified be listed, in Part 2.10 3.8 of the Disclosure Schedule, including all amendments thereto. (B) Collective Bargaining Agreement, (C) Company Lease, (D) Affiliate Arrangement, (E) material Contract listed or required to be listed in Part 2.10 3.6(c) of the Disclosure Schedule provides an accurate description of the terms of each Ibex and (F) Contract that is not in written form. Each Contract identified in Part 2.10 filed, or required to be filed, as an exhibit to the Company’s Annual Report on Form 10-K under the Exchange Act prior to the date of the Disclosure Schedule is valid and in full force and effectthis Agreement being referred to as a “Material Contract”).
(c) There are no existing breaches or defaults, and, to the best knowledge of the Company, no Effect exists that, with notice, the passage of time or both, would constitute a breach or default, on the part of any Acquired Company or, to the knowledge of Ibex and the Designated ShareholdersCompany any other Person under any Material Contract, in each case except where such breaches or defaults would not, individually or in the aggregate, reasonably expect to be material the Acquired Companies (taken as a whole). Each Material Contract is valid, has not been terminated prior to the date of this Agreement, is enforceable by Ibex against the applicable Acquired Company, and, to the knowledge of the Company, is enforceable against the other parties thereto, in accordance with its terms, each case subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, debtors and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
remedies (c) Except as set forth in Part 2.10 of the Disclosure Schedule:
collectively, clauses (i) Ibex and (ii), the “Enforceability Exceptions”). The Company has not violated or breached, or committed any default under, any Ibex Contract, and, made available to the best Parent accurate and complete copies of each Material Contract in effect as of the knowledge date of Ibex this Agreement, together with all amendments and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best supplements thereto in effect as of the knowledge date of Ibex and the Designated Shareholders, no event this Agreement. No Acquired Company has occurred, and no circumstance or condition exists, that (with or without received any written notice or lapse of time) will, or could reasonably be expected to, (A) result in a regarding any violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a or default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex Material Contract that has not received since been cured, except for notices regarding violations or breaches that would not, individually or in the aggregate, reasonably expect to be material the Acquired Companies (taken as a whole). No Acquired Company has waived in writing any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
, the waiver of which would, individually or in the aggregate, reasonably expect to be material the Acquired Companies (dtaken as a whole). As of the date of this Agreement, no party to any Material Contract has given any Acquired Company (A) No Person is renegotiating, written notice of its intention to cancel or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under terminate any Material Contract or any other material term (B) written notice of its intention to change the scope of rights under or provision of to fail to renew any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business , except in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description case of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of clauses (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or and (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement), as would not have a Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Rosetta Stone Inc)
Contracts. (a) Except as set forth in Part 2.10 2.5 of the NCD Disclosure Schedule identifiesSchedule:
(i) each Ibex Contract NCD has not entered into any employment, independent contractor or similar agreement, contract or commitment relating to the employment ofZ- Mail Business that obligates NCD to pay more than $10,000 over the life of the contract, or the performance has a fixed term of services bymore than one year, or that is not terminable on not more than ninety (90) days' notice without penalty or liability of any employeetype, consultant including without limitation severance or independent contractor;termination pay.
(ii) each Ibex Contract relating to the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete NCD is not restricted by agreement from competing with any other Person, (B) to acquire any product person or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to carrying on the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 Z-Mail Business anywhere in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contractsworld.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the The NCD Disclosure Schedule provides an accurate description lists all agreements pursuant to which NCD has agreed to manufacture for or supply to any third party any Z-Mail Products or components thereto requiring, or expected to require, payments of Fifty Thousand Dollars ($50,000) or more over the terms life of any such agreement. The NCD Disclosure Schedule also lists each Ibex Contract that vendor who is not the sole source for any product or component included in written form. the Products.
(c) Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated ShareholdersNCD, is enforceable by Ibex NCD in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. To NCD's knowledge, no party to any such Contract, agreement or instrument intends to cancel, withdraw, modify or amend such Contract.
(cd) Except as set forth in Part 2.10 2.5 of the NCD Disclosure Schedule:
(i) Ibex NCD has not violated or breached, or committed any default under, any Ibex ContractNCD contract relating to the Z-Mail Business, and, to the best of the knowledge of Ibex and the Designated ShareholdersNCD's knowledge, no other Person has violated or breached, or committed any default under, any Ibex Contract;such contract; in each case which default would have a Material Adverse Effect on the Z-Mail Business.
(ii) to the best of the knowledge of Ibex and the Designated ShareholdersNCD's knowledge, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected expect to, (A) result in a violation or breach of any of the provisions of any Ibex ContractNCD contract relating to the Z-Mail Business, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contractsuch NCD contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, such contract; or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;such contract, in each case, the result of which would have a Material Adverse Effect on the Z-Mail Business.
(iii) since December 31The Lease, 1992as defined in Section 8.4 herein, Ibex has is valid, binding, enforceable and effective in accordance with its terms. To the best of NCD's knowledge, there is not received any notice or other communication regarding any actual or possible violation or breach of, or existing material default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract by NCD or any other material term or party of any provision of the Lease or event which, with notice or lapse of time or both, would constitute a material default of any Material Contractsuch provision.
(e) The Contracts identified Lease contains no provision which would require the consent of third parties to the Acquisition in Part 2.10 the event of the subletting of the Building, as defined in Section 8.4 or the assignment of the Lease by NCD to NetManage. If the Lease contains any such provisions, then NCD has described in the NCD Disclosure Schedule collectively constitute all of such actions as are necessary with respect to the Contracts necessary Lease to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which avoid any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid adverse consequence as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any subletting of the other agreements referred to in this Agreement, Building or (B) the consummation assignment of the Merger or any of the other transactions contemplated by this AgreementLease.
Appears in 1 contract
Sources: Asset Purchase Agreement (Network Computing Devices Inc)
Contracts. (a) Part 2.10 Schedule 3.10(a) of the Seller Disclosure Update lists (x) each Contract entered into between July 25, 2002 and the date hereof that would have been an Identified Contract had it been entered into prior to July 25, 2002 and (y) each amendment, modification or express waiver to any of the material terms of any Identified Contract made after July 25, 2002 and prior to the date hereof. Schedule 3.10(a) of the Seller First Disclosure Schedule identifies:lists the following Contracts to which the Company or one of its Subsidiaries was a party as of July 25, 2002 and which are currently in effect (each Contract required to be listed on Schedule 3.10(a), an “Identified Contract”):
(i) each Ibex any Contract relating to the employment of, or the performance requiring capital expenditures involving consideration in excess of services by, $5,000,000 in any employee, consultant or independent contractortwelve-month period;
(ii) each Ibex (A) any Contract relating to which restricts or limits the acquisition, transfer, use, development, sharing or license ability of any technology the Company or any Proprietary Assetof its Subsidiaries to freely engage in the quick service restaurant business in any geographic area or (B) any Contract which restricts or limits the ability of Affiliates of the Company (other than the Company and its Subsidiaries) to conduct any legal line of business in any geographic area other than Contracts which restrict or limit the ability to conduct a business at a particular site of real property;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technologycollective bargaining agreement;
(iv) each Ibex any Contract creating pursuant to which (A) payments were made during the twelve-month period ended June 30, 2002, or involving (B) are reasonably anticipated, as of the date hereof, by the Company to be made during the twelve-month period ending on June 30, 2003, by or to the Company or any agency relationshipof its Subsidiaries of more than $2,000,000 to or from any Person, distribution arrangement except for Contracts among only Affiliates of the Seller, BKL Leases or franchise relationshipagreements with franchisees of the Company or its Subsidiaries;
(v) each Ibex any Contract relating to the acquisitionownership, issuance management or transfer control of any securitiesPerson in which the Company or any of its Subsidiaries owns any equity securities other than direct and indirect wholly owned Subsidiaries of the Company;
(vi) each Ibex any Contract relating to the creation acquisition or disposition outside the Ordinary Course of Business of any Encumbrance with respect assets or any business (whether by merger, sale of stock, sale of assets or otherwise) to the extent any asset material actual or contingent express obligations of Ibexthe Company or any of its Subsidiaries thereunder remain in effect;
(vii) each Ibex Contract involving or incorporating any guarantyother than Intercompany Accounts, any pledgeContract relating to indebtedness for borrowed or loaned money or the deferred purchase price of property (in each case, whether incurred, assumed, guaranteed or secured or unsecured by any performance or completion bond, any indemnity or any surety arrangementasset) under which at least $2,000,000 is outstanding;
(viii) each Ibex other than Intercompany Accounts, any Contract creating or relating to outstanding letters of credit or performance bonds or creating any partnership liability as guarantor, surety, co-signer, endorser, co-maker or joint venture indemnitor, in each case in respect of the obligation of any Person to make payments or any sharing perform services with a value of revenues, profits, losses, costs or liabilitiesat least $2,000,000;
(ix) each Ibex any material Contract relating to with any Executive Officer or director of the purchase Company or sale any of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);its Subsidiaries; and
(x) each Ibex any Contract constituting or with outstanding obligations relating to a Government Contract or Government Bid;
(xi) the settlement of any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material ContractsLitigation.")
(b) Ibex has delivered Each Identified Contract is (and each Contract entered into between July 25, 2002 and the Closing that would have been an Identified Contract had it been entered into prior to Castelle accurate and complete copies July 25, 2002, will, at the Closing be (unless it shall have terminated or expired in accordance with its terms (other than as a result of all written Contracts identified in Part 2.10 of a breach or default by the Disclosure ScheduleCompany or its Subsidiaries)) valid, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and binding, in full force and effecteffect and enforceable against the Company or the applicable Subsidiary of the Company, unless it shall have terminated or expired in accordance with its terms (other than as a result of a breach or default by the Company or its Subsidiaries), and, to the best Knowledge of the knowledge of Ibex and the Designated ShareholdersSeller, is enforceable by Ibex against any other party thereto, in accordance with its terms. The Company or the applicable Subsidiary of the Company is not in breach or default under any Identified Contract (or a Contract entered into between July 25, subject to (i) laws of general application relating to bankruptcy, insolvency 2002 and the relief Closing that would have been an Identified Contract had it been entered into prior to July 25, 2002) and, to the Knowledge of debtorsSeller, no event has occurred which, with notice or lapse of time or both, would constitute a breach or default, or permit termination, modification, or acceleration, under any Identified Contract (or a Contract entered into between July 25, 2002 and (iithe Closing that would have been an Identified Contract had it been entered into prior to July 25, 2002) rules of law governing specific performanceby any party thereto, injunctive relief except where the failure to be so valid, binding, in full force and other equitable remedieseffect or enforceable, or such breach or default, termination, modification or acceleration, would not be reasonably likely, individually or in the aggregate, to have a Material Adverse Effect or, individually or in the aggregate, prevent or materially delay or materially impair the transactions contemplated hereby.
(c) Except as set forth in Part 2.10 True and complete copies of each Identified Contract and each Contract entered into between July 25, 2002 and the Disclosure Schedule:
(i) Ibex has not violated or breacheddate hereof that would have been an Identified Contract had it been entered into prior to July 25, or committed any default under2002, any Ibex Contract, and, including all amendments thereto entered into prior to the best of the knowledge of Ibex and the Designated Shareholdersdate hereof, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) have been made available by Seller to Buyer prior to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contractdate hereof.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Contracts. Schedule 3.15 sets forth a list of all contracts to which the Company or any of its Subsidiaries is a party or by which any of them is bound or to which the Company or any of its Subsidiaries is subject, except (a) Part 2.10 any contract that does not require payment by any party thereto of more than $250,000, (b) any contract that is terminable by the Disclosure Schedule identifies:
Company or any of its Subsidiaries upon ninety (i90) each Ibex Contract relating to days' notice or less without the employment of, or the performance of services by, any employee, consultant or independent contractor;
(ii) each Ibex Contract relating to the acquisition, transfer, use, development, sharing or license payment of any technology material penalty or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Personmaterial termination fee, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xic) any other Ibex Contract that was contract entered into, after the date hereof and prior to Closing, with the Buyer, (d) any contract entered into outside in the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate date hereof and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, prior to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtorsClosing, and (iie) rules of law governing specific performanceany contract listed in any other Schedule to this Agreement. As used in this Section 3.15, injunctive relief the word "contract" means and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach includes every written agreement of any of kind which is legally enforceable by or against the provisions of any Ibex Contract, (B) give any Person the right to declare a default Company or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 Subsidiaries. Each of the Disclosure contracts listed on Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement 3.15 hereto or any of the other agreements referred to Schedules hereto is in full force and effect and neither the Company nor any of its Subsidiaries has committed any material breach or default thereunder. Except as set forth on Schedule 3.4 or Schedule 3.15, neither the execution and delivery of this AgreementAgreement by the Company and the Sellers nor the consummation by the Company and the Sellers of the transactions contemplated hereby will constitute a violation of, or (B) constitute or create a material default under, permit the consummation termination of, cause the acceleration or maturity of, or result in the creation or imposition of any material lien, claim or encumbrance upon any property of the Merger Company or any of its Subsidiaries pursuant to, any contract listed on Schedule 3.15 or any of the other Schedules hereto. Except as set forth on Schedule 3.5 or Schedule 3.15 hereto, no notice to or consent or approval of any Person is required to be obtained or made by the Company or any of its Subsidiaries in connection with the consummation of the transactions contemplated by this AgreementAgreement under any contract listed or required to be listed on Schedule 3.15 or any of the other Schedules hereto (other than notices, consents or approvals required under agreements or commitments evidencing, or entered into by the Company or any of its Subsidiaries in connection with, Indebtedness of the Company and/or any of its Subsidiaries to be paid and discharged at Closing pursuant to Section 8.4).
Appears in 1 contract
Contracts. (a) Part 2.10 Except as disclosed in the Company Reports filed and publicly available prior to the date hereof or as disclosed in the filings with the SEC publicly available prior to the date hereof or as set forth in Section 4.11(a) of the Company Disclosure Schedule identifies:Schedule, neither the Company nor any of its Subsidiaries is a party to or is bound by any Contract (each, a "Material Contract"):
(i) each Ibex Contract relating which is a material contract as defined in Item 601(b)(10) of Regulation S-K of the SEC to be performed in whole or in part after the employment of, or the performance date of services by, any employee, consultant or independent contractorthis Agreement;
(ii) each Ibex Contract relating to the acquisitionborrowing of money, transferguarantees, usesecurity agreements and deferred purchase Contracts, development, sharing including obligations for reimbursement under letters of credit or license reimbursement agreements therefor (other than letters of any technology credit or reimbursement agreements therefor that are related to Reinsurance Agreements and Retrocession Agreements entered into by the Company or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal of its Subsidiaries in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent consistent with Ibex's past practices;
(xiipractice) in any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value case representing future liabilities in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred US$ 5,000,000 with respect to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex single Contract;
(iii) since December 31, 1992, Ibex has not received with any notice Company Employee pursuant to which the Company or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under Subsidiaries owes or could owe any Material Contract.
(d) No Person is renegotiating, monetary obligation that would become due and payable or has a right pursuant to the terms of any Ibex Contract to renegotiate, any increase in amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement, the other Transaction Agreements or the ING Transaction Agreement;
(iv) containing any provision or covenant limiting the ability of the Company or any of its present or future Affiliates (other than the Investors and their Affiliates) to engage in any line of business or compete with any Person in any geographical area or requiring the Company or any of its present or future Affiliates (other than the Investors and their Affiliates) to use any product or service on a priority or exclusive basis or give any other person a priority or exclusive right with respect to business opportunities;
(v) between the Company or any of its Subsidiaries, on the one hand, and any of their Affiliates (other than the Company and its Subsidiaries), on the other hand;
(vi) involving the purchase, sale, transfer, assignment or other disposition of assets or liabilities of the Company or any of its Subsidiaries having a value in any case in excess of US$ 5,000,000 and which is to be performed in whole or in part after the date of this Agreement, other than (A) an agreement for proposed dispositions that have been disclosed to the Investors prior to the date hereof, (B) agreements for the disposition of assets held by the Company or any of its Subsidiaries in their investment portfolios in accordance with their respective Investment Policies and in the ordinary course of business consistent with past practice, (C) dispositions pursuant to Retrocession Agreements or Reinsurance Agreements in the ordinary course of business consistent with past practice and (D) the ING Transaction Agreement;
(vii) representing future liabilities in any case in excess of US$ 5,000,000 individually that are subject to termination upon the consummation of the transactions contemplated hereby; or
(viii) pursuant to which the Company or any of its Subsidiaries has agreed to grant or has granted an option or similar right to another Person affecting any material asset of the Company or any of its Subsidiaries, other than (A) assets held by the Company or any of its Subsidiaries in its investment portfolio in accordance with its Investment Policies or (B) assets disposed in connection with one or more proposed plans or transactions that have been disclosed to the Investors prior to the date hereof.
(b) True and complete copies of each Material Contract or, if none exist, written descriptions thereof, have been made available to the Investors prior to the date of this Agreement. Each of the Material Contracts is in full force and effect and is binding upon and enforceable against the Company or its Subsidiary, as the case may be, in accordance with their respective terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in effect affecting creditors' rights generally or by general principles of equity. Neither the Company nor any of its Subsidiaries is in material breach or default, or has received written notice of a claimed material breach or default, under any of the Material Contracts and, to the Company's knowledge, there does not exist under any of the Material Contracts any event which, with the giving of notice or lapse of time or both, would constitute a material breach or default by the Company or any of its Subsidiaries or any other party thereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (Scottish Re Group LTD)
Contracts. (a) Part 2.10 Section 4.13(a) of the Fermat Disclosure Schedule identifies:
sets forth as of the date of this Agreement a true and complete list of the following Contracts (other than purchase orders and invoices entered into in the ordinary course of business) to which Fermat or any of its Subsidiaries is a party or by which Fermat or any of its Subsidiaries is bound to the extent related to the H&N Business (other than any Contract that is a H&N Benefit Plan, Excluded H&N Asset, any Contract listed on Section 4.17(a) of the Fermat Disclosure Schedule or any Contract constituting an Acquisition Document) (the “H&N Material Contracts”): (i) each Ibex any Contract that (A) resulted in or is expected to result in a payment of more than $2,000,000 by the H&N Business during 2016 or 2017 or (B) resulted in or is expected to result in the receipt of more than $2,000,000 by the H&N Business during 2016 or 2017; (ii) any Contract containing any future capital expenditure obligations of the H&N Business in respect of any single project in excess of $2,000,000; (iii) any joint venture, partnership, limited liability company or strategic alliance agreement or other similar Contract with a third party; (iv) other than Contracts for the acquisition or sale of products or provision of services in the ordinary course of business, any Contract relating to the employment of, acquisition or the performance of services by, any employee, consultant or independent contractor;
(ii) each Ibex Contract relating to the acquisition, transfer, use, development, sharing or license disposition of any technology product, asset, business or product line (whether by merger, sale of stock, sale of assets or otherwise) under which, after the Closing, the H&N Business may have any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person“earn out,” contingent purchase price, (B) to acquire any product indemnification or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
contingent payment obligation; (v) each Ibex any Contract relating containing covenants that would restrict or limit the ability of the H&N Business or Descartes or any of its Affiliates after the Closing to the acquisitioncompete in any material respect with any business, issuance product or transfer of product line or with any securities;
Person or in any geographic area; (vi) each Ibex Contract relating to the creation of any Encumbrance material capital lease, as determined in accordance with respect to any asset of Ibex;
GAAP; (vii) each Ibex Contract involving any material sales representative or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
distribution Contract; (viii) each Ibex any customer Contract creating that specifies the minimum pricing for products or relating services sold by the H&N Business for a period of longer than two years from the Closing Date and that resulted in or is expected to any partnership result in the receipt of more than $2,000,000 by the H&N Business during 2016 or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
2017; (ix) each Ibex any Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to with a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 customer of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract H&N Business that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated a requirements contract or breached, contains exclusivity arrangements or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contracta “most favored nation” pricing clause;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: MSW Transaction Agreement (FMC Corp)
Contracts. (a) Part 2.10 Section 3.9(a) of the Company Disclosure Schedule identifiesidentifies each Contract to which any Acquired Corporation is a party, or by which it is bound, that constitutes a Material Contract as of the date of this Agreement. For purposes of this Agreement, each of the following to which any Acquired Corporation is a party or by which it is bound as of the date of this Agreement constitutes a “Material Contract”:
(i) each Ibex any Contract relating that is a settlement, conciliation or similar Contract with or approved by any Governmental Body and pursuant to which (1) an Acquired Corporation will be required after the employment of, date of this Agreement to pay any monetary obligations or the performance (2) that contains material obligations or limitations on such Acquired Corporation’s conduct; Table of services by, any employee, consultant or independent contractor;Contents
(ii) each Ibex any Contract relating (1) that purports to materially limit the acquisition, transfer, use, development, sharing freedom or license right of any technology Acquired Corporation to engage in any line of business, to make use of any material Company IP or to compete with any Proprietary Assetother Person in any location or line of business, (2) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by any Acquired Corporation or (3) containing exclusivity obligations or otherwise purports to materially limit the freedom or right of any Acquired Corporation to sell, distribute or manufacture any products or services for any other Person;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business requires by its terms or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) is reasonably expected to require the payment or delivery of cash or other consideration to any Acquired Corporation in an amount or having a an expected value in excess of $10,000 1,000,000 in the aggregatefiscal year ending December 31, 2019 or (B) the performance of services by any Acquired Corporation in an amount having a an expected value in excess of $10,000 1,000,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since fiscal year ending December 31, 1992, Ibex has 2019 and in each case which cannot received any notice be cancelled by such Acquired Corporation without penalty or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; andfurther payment without more than ninety (90) days’ notice;
(iv) Ibex has not waived any Contract relating to Indebtedness in excess of its material rights under $50,000 (whether incurred, assumed, guaranteed or secured by any Material Contract.asset) of any Acquired Corporation;
(dv) No any Contract with any Person is renegotiatingconstituting a joint venture, collaboration, development, partnership or similar profit sharing arrangement;
(vi) any Contract (excluding any Employee Plan) that by its express terms requires an Acquired Corporation, or has a right pursuant to the terms of any Ibex Contract to renegotiatesuccessor to, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bidacquirer of, offeran Acquired Corporation, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or payment to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid another Person as a result of a change of control of such Acquired Corporation (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(vii) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the capital stock, ordinary shares, other equity interests or other securities of an Acquired Corporation, the pledging of the capital stock, ordinary shares, other equity interests or other securities of an Acquired Corporation or the issuance of any guaranty by virtue an Acquired Corporation;
(viii) (1) any In-bound License listed (or required to be listed) on Section 3.8(g)(i) of the Company Disclosure Schedule, (A2) Third Party IP Contracts listed (or required to be listed) on Section 3.8(g)(i) of the Company Disclosure Schedule, (3) any Out-bound License or listed (or required to be listed) on Section 3.8(g)(ii) of the Company Disclosure Schedule and (4) any Contract listed (or required to be listed) on Section 3.8(g)(iii) of the Company Disclosure Schedule;
(ix) any Contract pursuant to which the Company has continuing obligations or interests involving (1) the execution, delivery achievement of performance regulatory or commercial milestones or other similar contingent payments in excess of this Agreement $500,000 or (2) payment of royalties or other amounts calculated based upon any revenues or income of the other agreements referred to Company, in this Agreement, each case that cannot be terminated by the Company without penalty or further payment without more than ninety (B90) the consummation of the Merger or any of the other transactions contemplated by this Agreement.days’ notice;
Appears in 1 contract
Contracts. (a) Part 2.10 Section 3.11 (a) of the Company Disclosure Schedule identifies:identifies each material license agreement, development agreement, manufacturing agreement, distribution agreement, OEM agreement or other agreement to which the Company is a party.
(b) (i) each Ibex Contract relating The Company has no agreements, contracts or commitments that call for prospective fixed and/or contingent payments or expenditures by or to the employment of, or Company of more than $50,000 other than those entered into in the performance ordinary course of services by, any employee, consultant or independent contractorits business concerning the sale of Company Products;
(ii) each Ibex Contract relating to The Company has no purchase agreement, contract or commitment that calls for fixed and/or contingent payments by the acquisitionCompany that are in excess of the normal, transfer, use, development, sharing or license ordinary and usual requirements of any technology or any Proprietary Assetthe Company's business;
(iii) each Ibex Contract imposing any restriction on Ibex's right There is no outstanding sales contract, commitment or ability proposal (Aincluding, without limitation, development projects) of the Company that is reasonably likely to compete with any other Personresult, (B) to acquire any product either individually or other asset or any services from any other Personin the aggregate, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, Material Adverse Change to the Company upon completion or (C) develop or distribute any technologyperformance thereof;
(iv) each Ibex Contract creating The Company has no outstanding agreements, contracts or involving commitments with officers, employees, agents, consultants, advisors, salesmen, sales representatives, distributors or dealers that are not cancelable by it on notice of not longer than thirty days and without liability, penalty or premium exceeding $50,000 in any agency relationship, distribution arrangement single instance or franchise relationship$75,000 in the aggregate;
(v) each Ibex Contract relating to the acquisitionThe Company has not entered into any employment, issuance independent contractor or transfer similar agreement, contract or commitment that is not terminable on not more than thirty days' notice without penalty or liability of any securitiestype, including without limitation severance or termination pay;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of IbexThe Company has no collective bargaining or union agreements, contracts or commitments;
(vii) each Ibex Contract involving The Company is not restricted by agreement from competing with any person, from carrying on its business anywhere in the world or incorporating otherwise operating its business in any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangementmanner it deems appropriate;
(viii) each Ibex Contract creating The Company has not guaranteed any obligations of other Persons or relating made any agreements to acquire or guarantee any partnership or joint venture or any sharing obligations of revenues, profits, losses, costs or liabilities;other Persons; and
(ix) each Ibex Contract relating The Company has no outstanding loan or advance to the purchase any Person; nor is it party to any line of credit, standby financing, revolving credit or sale other similar financing arrangement of any product or other asset sort that would permit the borrowing by or to, or the performance Company of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may sum not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 reflected in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material ContractsCompany Financial Statements.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Contracts. (a) Part 2.10 Schedule 3.8(a) lists the following material Contracts (other than Real Property Leases which are covered by Section 3.10) to which any Acquired Company is a party as of the Disclosure Schedule identifies:date hereof (each Contract so listed is a “Major Contract”):
(i1) each Ibex Contract relating employment agreement (other than any such employment agreement that is or on the Closing Date will be terminable at will by any Acquired Company without any obligation of any Acquired Company, except any obligation with respect to events before the employment of, or the performance of services by, any employee, consultant or independent contractortermination thereof);
(ii2) each Ibex Contract relating covenant not to compete that restricts in any material respect the acquisition, transfer, use, development, sharing or license operation of the business of any technology or any Proprietary AssetAcquired Company;
(iii3) each Ibex operating lease (as lessor or lessee) of tangible personal property (other than any such lease that contemplates aggregate payments of less than $100,000 per year);
(4) each Contract imposing with a Material Supplier;
(5) each Contract for the purchase by any restriction on Ibex's right Acquired Company of any supply or ability product that calls for performance over a period of more than one year (other than any such Contract that (A) to compete with is or on the Closing Date will be terminable at will or upon not more than 90 days’ notice by any other Person, (B) to acquire Acquired Company without any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer obligation of any securities;
(vi) each Ibex Contract relating to the creation of Acquired Company, except any Encumbrance obligation with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to event before the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregatethereof, or (B) contemplates aggregate payments of less than $500,000 for the performance most recent fiscal year);
(6) each Contract pursuant to which any Acquired Company has incurred any Indebtedness or is subject to any Encumbrance (excluding Permitted Encumbrances);
(7) each Contract under which any Acquired Company has advanced or loaned any other Person, other than another Acquired Company, any amount that remains outstanding;
(8) each Contract of services having an Acquired Company that has been guaranteed by Seller;
(9) each partnership or joint venture Contract; and
(10) each Contract, other than any Contract of a value in excess of $10,000 in the aggregate. (Contracts in the respective categories nature described in clauses "clause (i)" through "a)(1) above, with any Affiliate of (xiii)" above are referred to in this Agreement as "Material ContractsA) Seller, other than another Acquired Company, or (B) any officer or director of any Acquired Company.")
(b) Ibex Seller has delivered made available to Castelle accurate Buyer a true and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms copy of each Ibex Major Contract. With respect to each Major Contract, (1) such Major Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effecteffect and constitutes a legal and binding obligation of the Acquired Company thereto, (2) such Acquired Company is not and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated ShareholdersSeller’s Knowledge, no other Person party thereto is in material breach of or default under such Major Contract and no party thereto has violated given to any other party thereto written notice alleging that such a breach or breacheddefault occurred, or committed any default under, any Ibex Contract;
(ii3) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, occurred that (with or without notice the passage of time or lapse giving of time) willnotice), to Seller’s Knowledge, would constitute a material breach or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default underpermit termination, modification, acceleration or cancellation of, such Major Contract or of any Ibex Contract; and
material right or obligation thereunder, and (iv4) Ibex no party to such Major Contract has not waived any received written notice of its material rights under any Material termination or cancellation such Major Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Contracts. (a) Part 2.10 Section 3.9(a) of the Company Disclosure Schedule identifiesidentifies each Contract to which any Acquired Corporation is a party, or by which it is bound, that constitutes a Material Contract as of the date of this Agreement. For purposes of this Agreement, each of the following (excluding any Employee Plan) to which any Acquired Corporation is a party or by which it is bound as of the date of this Agreement constitutes a “Material Contract”:
(i) each Ibex any Contract relating that is a settlement, conciliation or similar agreement between any Acquired Corporation and any Governmental Body and pursuant to which (A) an Acquired Corporation will be required after the employment of, date of this Agreement to pay any monetary obligations or the performance of services by, any employee, consultant (B) that contains material obligations or independent contractorlimitations on such Acquired Corporation’s conduct;
(ii) each Ibex any Contract relating to between any Acquired Corporation and any third Person (A) materially limiting the acquisition, transfer, use, development, sharing freedom or license right of any technology Acquired Corporation to engage in any line of business or to compete with any Proprietary Assetother Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by any Acquired Corporation, or (C) containing exclusivity obligations or otherwise materially limiting the freedom or right of any Acquired Corporation to sell, distribute or manufacture any products or services for any other Person;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business requires by its terms or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) is reasonably expected to require the payment or delivery of cash or other consideration to any Acquired Corporation in an amount or having a an expected value in excess of $10,000 100,000 for the fiscal years ending December 31, 2025 through December 31, 2027 or by any Acquired Corporation in the aggregate, or (B) the performance of services an amount having a an aggregate expected value in excess of $10,000 250,000 for the fiscal years ending December 31, 2025 through December 31, 2027 and in each case (A) which cannot be cancelled by such Acquired Corporation without penalty or further payment without more than ninety (90) days’ notice and (B) excluding commercially available off-the-shelf software licenses and Software-as-a-Service offerings, generally available patent license agreements, material transfer agreements, clinical trial agreements and non-exclusive outbound license agreements, and any In-bound License or Out-bound License;
(iv) any Contract under which any Acquired Corporation has obtained Indebtedness for borrowed money in an aggregate principal amount in excess of $100,000 (whether incurred, assumed, guaranteed or secured by any asset);
(v) any Contract between an Acquired Corporation and a third Person (A) for the disposition of any material assets or business of the Acquired Corporations or (B) for the acquisition of a material portion of the assets or business of any third Person (whether by merger, sale of stock or assets or otherwise), in each case (A) or (B) that contains continuing indemnities or other material obligations or any continuing “earn out” or other contingent payment obligations on the part of an Acquired Corporation;
(vi) any Contract between any Acquired Corporation and any third Person constituting a joint venture, collaboration, partnership or similar revenue sharing arrangement;
(vii) any Contract that by its express terms requires an Acquired Corporation, or any successor to, or acquirer of, an Acquired Corporation, to make any payment to another Person as a result of a change of control of such Acquired Corporation (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(viii) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the capital stock of an Acquired Corporation, the pledging of the capital stock or other equity interests of an Acquired Corporation or the issuance of any guaranty by an Acquired Corporation;
(ix) any Contract that is a license agreement pursuant to which an Acquired Corporation licenses from a third Person any material Intellectual Property Right (each an “In-bound License”) or licenses to a third Person any material Intellectual Property Right owned by an Acquired Corporation (each an “Out-bound License”) (provided, that, (a) In-bound Licenses shall exclude commercially available off-the-shelf software, clinical trial agreements, non-disclosure agreements, sponsored research agreements, service agreements or material transfer agreements, (b) Out-bound Licenses shall exclude non-exclusive outbound licenses contained in clinical trial agreements, manufacturing or supply agreements, non-disclosure agreements, sponsored research agreements, service agreements, material transfer agreements, or to other service providers, and (c) both In-Bound Licenses and Out-Bound Licenses shall exclude Contracts in which the license of Intellectual Property Rights is incidental to the performance of such Contract);
(x) any other Contract that is currently in effect and has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;
(xi) any Contract with any Affiliate (other than another Acquired Corporation), director, executive officer (as such term is defined in the aggregate. Exchange Act), Person holding 5% or more of the Shares, or, to the knowledge of the Company, any Affiliate (Contracts in other than the respective categories described in clauses "Company) or immediate family member of any of the foregoing; and
(i)" through "(xiii)" above are referred to in this Agreement as "Material Contractsxii) any Contract that is a lease of which the Leased Real Property is subject thereto.")
(b) Ibex As of the date of this Agreement, the Company has either delivered or made available to Castelle Parent an accurate and complete copies copy of all written Contracts identified each Material Contract or has publicly made available such Material Contract in Part 2.10 the Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) database of the Disclosure ScheduleSEC. No Acquired Corporation nor, including all amendments thereto. Part 2.10 to the knowledge of the Disclosure Schedule provides an accurate description Company, any other party thereto is in material breach of, or material default under, any Material Contract and no Acquired Corporation, or to the knowledge of the terms Company, any other party to a Material Contract has taken or failed to take any action that with or without notice, lapse of each Ibex Contract that is not in written formtime or both would constitute a material breach of or material default under any Material Contract. Each Material Contract identified in Part 2.10 is, with respect to the Acquired Corporations and, to the knowledge of the Disclosure Schedule is Company, each other party thereto, a valid and binding agreement in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, except as such enforcement may be subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application applicability relating to bankruptcy, insolvency and the relief of debtorsor affecting creditors’ rights, and (ii) rules of law governing specific performanceby general equitable principles. Since January 1, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of 2022, the Disclosure Schedule:
(i) Ibex has Acquired Corporations have not violated or breached, or committed received any default under, written notice regarding any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a material violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract that has not since been cured, and there are no such violations, breaches or any other material term defaults that occurred or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary existed on or prior to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 19962022 that remain active or for which the Company could have any ongoing liability.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Sage Therapeutics, Inc.)
Contracts. (a) Part 2.10 Section 5.18(a) of the Company Disclosure Schedule identifieslists:
(i) each Ibex Contract relating to the employment of, or the performance of services by, any employee, consultant or independent contractorFacility Lease;
(ii) each Ibex Contract relating capital lease, note payable, or other contract for borrowed money to the acquisition, transfer, use, development, sharing which any Acquired Entity is a party or license of any technology or any Proprietary Assetis otherwise bound ;
(iii) each Ibex Contract imposing Contracts to which any restriction on Ibex's right Acquired Entity is a party or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal is otherwise bound not made in any other manner with any other Person, or (C) develop or distribute any technologythe Ordinary Course of Business;
(iv) each Ibex joint venture, partnership, management and other Contract creating to which any Acquired Entity is a party, or involving is otherwise bound that involves a sharing of profits, losses, costs or Liabilities by such Acquired Entity with any agency relationship, distribution arrangement or franchise relationshipother Person;
(v) each Ibex Contract relating to which any Acquired Entity is a party, or is otherwise bound, providing for payments to any Person (other than any Acquired Entity) based on sales, purchases or profits other than Contracts or commitments that can or in reasonable probability will be completed within thirty (30) days of the acquisition, issuance Equity Closing Date or transfer can be terminated within such thirty (30) day period without payment of any securitiesa penalty in excess of $25,000;
(vi) each Ibex Contract relating to all Contracts entered into by any Acquired Entity that provide for an aggregate payment from such Acquired Entity in excess of $50,000 in any contract year other than Contracts or commitments that can or in reasonable probability will be completed within thirty (30) days of the creation Equity Closing Date or can be terminated within such thirty (30) day period without payment of any Encumbrance with respect to any asset a penalty in excess of Ibex$15,000;
(vii) each Ibex any Contract involving concerning confidentiality or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;non-competition that is in effect as of the date of the Agreement; and
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to contract with a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) veterinarian for the performance of services having a value in excess of $10,000 in to the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material ContractsAcquired Entities.")
(b) Ibex has delivered With respect to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 each Contract set forth on Section 5.18(a) of the Company Disclosure Schedule, including all amendments thereto. Part 2.10 of (i) the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid enforceable and in full force and effect, andand has not been terminated, canceled, amended or modified, (ii) the Contract will continue to be enforceable following the consummation of the Transactions without modification to the best terms thereof, (iii) no Acquired Entity is in Breach of the knowledge of Ibex such Contract and the Designated Shareholders, is enforceable Company has no Knowledge of any Breach by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtorsany other party thereto, and (iiiv) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 no party to the Contract has repudiated any provision of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to . To the best Knowledge of the knowledge of Ibex and the Designated ShareholdersCompany, there are no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach renegotiations of, attempts to renegotiate or default under, outstanding rights to renegotiate any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount amounts paid or payable to Ibex any Acquired Entity under any Material Contract current or any other material term or provision of any Material Contract.
(e) The completed Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(hSection 5.18(a) of the Company Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection Schedule with any Government Person having the contractual or statutory right to demand or require such renegotiation and no such Person has made written demand for such renegotiation. The Company has delivered or made available to Parent true, correct and complete copies of each Contract or Government Bid as a result of or by virtue of (Aset forth in Section 5.18(a) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this AgreementCompany Disclosure Schedule and all amendments and supplements thereto.
Appears in 1 contract
Contracts. (a) Part 2.10 Schedule 4.12(a)(i) and Schedule 4.12(a)(ii) of the Disclosure Schedule identifiesSchedules respectively set forth, as of the date of this Agreement, a true, correct and complete list of all of the Assumed Contracts and Shared Contracts (including all amendments or modifications thereto), to which any Seller is a party or by which any of the Purchased Assets are bound, including:
(i) each Ibex Any Contract relating that, in accordance with its terms, requires aggregate payments of $250,000 or more within the twelve (12) month period following the date hereof and that is not cancelable without Liability on ninety (90) or fewer days’ notice to the employment of, or the performance of services by, any employee, consultant or independent contractorother party thereto;
(ii) Any Contract with each Ibex Contract relating of (A) the ten (10) largest customers, (B) the ten (10) largest suppliers or service providers (measured by dollar volume of purchases or sales, respectively) during the fiscal year ended December 31, 2014 and (C) any supplier that constitutes a sole source of supply to the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary AssetBusiness;
(iii) each Ibex Contract imposing any restriction on Ibex's right Any Contracts or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset agreements relating to or perform evidencing indebtedness in excess of $250,000, any services for Contracts related to any other Person guarantee or assumption of obligations of any third party or reimbursement of any maker of a letter of credit and any Contract relating to transact business any hedging, derivative or deal in any other manner with any other Person, similar Contract or (C) develop or distribute any technologyarrangement;
(iv) each Ibex Contract creating Any Contracts that contain any non-compete or involving exclusivity provisions (or obligates Purchaser or any agency relationship, distribution arrangement of its Affiliates to enter into any non-compete or franchise relationshipexclusivity arrangements following the Closing) with respect to any line of business or geographic area;
(v) each Ibex Any Contract relating to that requires (or would require upon the acquisition, issuance or transfer happening of a contingency) the disposition of any securitiesassets or line of business of Sellers prior to Closing, or by Purchaser or any of its Affiliates following the Closing;
(vi) each Ibex Any Contract relating to the creation of any Encumbrance with respect to any asset of Ibexthat grants a contractual counterparty “most favored nation” or similar status;
(vii) each Ibex Any Contract involving that restricts the conduct of any line of business (including the ability to research, develop, distribute, sell, supply, market or incorporating manufacture any guarantyproduct (including products under development) for any indication in any product market, any pledge, any performance therapeutic area or completion bond, any indemnity geographic area) by Purchaser or any surety arrangementof its Affiliates following the Closing;
(viii) each Ibex Any Contract creating that requires or relating to any partnership or joint venture obligates Purchaser or any sharing of revenuesits Affiliates to purchase specified minimum amounts of any product or material or to perform or conduct research, profits, losses, costs clinical trials or liabilitiesdevelopment for the benefit of any Person other than Purchaser or any of its Affiliates;
(ix) each Ibex Any Contract relating to that prohibits or limits in any material respect the purchase or sale right of any product or other asset by or toof Sellers prior to Closing, or Purchaser or any of its Affiliates following the performance Closing, to make, sell or distribute any products or services or use, transfer, license, distribute or enforce any of any services by or for, any Related Party (as defined in Section 2.18)their respective Intellectual Property;
(x) each Ibex Any Contract constituting that could reasonably be expected to account for aggregate revenue of $1,000,000 or relating to a Government Contract or Government Bidmore during the fiscal year ending December 31, 2014;
(xi) any other Ibex Any Contract that was is a settlement agreement, other than (i) releases or separation agreements entered into outside the ordinary course of business with former employees or was inconsistent with Ibex's past practicescurrent or former independent contractors and (ii) settlement agreements under which there are no continuing obligations, Liabilities or rights (excluding releases);
(xii) Any Intellectual Property License, and any other Ibex Contract that has pursuant to which any of the Sellers grant a term of more than 60 days and that may license, covenant not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by to ▇▇▇▇, option or other right with respect to any Purchased Intellectual Property; and
(xiii) any other Ibex Any Contract that contemplates contains any liability or involves (A) the payment obligation to indemnify any Person against any Tax Liability or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contractsshare any Tax Liability with any Person.")
(b) Ibex Each Seller has delivered made available to Castelle accurate Purchaser true, complete and complete correct copies of (i) all written Assumed Contracts identified and (ii) all Shared Contracts, in Part 2.10 each case including any and all amendments, supplements or modifications thereto, or detailed descriptions of any oral Assumed Contracts. Each Assumed Contract and each Shared Contract is a legal, valid and binding obligation enforceable against the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract Seller that is not in written form. Each Contract identified in Part 2.10 a party thereto and, to the Knowledge of Sellers, the Disclosure Schedule other party thereto, and is valid and in full force and effect, andsubject to bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar Laws affecting creditors’ rights generally or by general principles of equity (regardless of whether enforcement is sought in a Proceeding in equity or law). Neither Seller, nor, to the best Knowledge of the knowledge of Ibex and the Designated ShareholdersSellers, is enforceable by Ibex in accordance with its terms, subject to any other party thereto (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth is in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated breach or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, or has delivered a notice of termination of, any Ibex Assumed Contract or Shared Contract; and
, and no event has occurred that, with the giving of notice or lapse of time or both, would constitute a breach or default of any Assumed Contract or Shared Contract, (ivii) Ibex has not waived communicated any of its material rights under intention or threat to Sellers, to reduce the prices it will pay to Sellers pursuant thereto, to terminate or to cancel any Material Contract.
(d) No Person is renegotiating, Assumed Contract or Shared Contract or has a right pursuant failed to renew or extend the terms term of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Assumed Contract or any other material term or provision Shared Contract upon the expiration of any Material Contractsuch term.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Concordia Healthcare Corp.)
Contracts. Section 5.17 of the Company Disclosure Schedule lists as of the date of this Agreement all written or oral contracts, agreements, guarantees, leases and executory commitments other than Plans (each a “Contract”) to which the Company is a party and which fall within any of the following categories (specifying the category into which each Contract falls) and which are not disclosed as “material contracts” (within the meaning of Item 601(b)(10) of Regulation S-K) in the Company SEC Documents and filed in unredacted form therewith: (a) Part 2.10 joint venture, partnership and like agreements, other than those that are, individually or in the aggregate, immaterial; (b) Contracts containing covenants purporting to limit the freedom of the Disclosure Schedule identifies:
Company (ior that, following the consummation of the Transactions, would materially restrict the ability of the Surviving Corporation or its affiliates) each Ibex to compete in any line of business in any geographic area or to hire any individual or group of individuals; (c) Contracts which contain minimum purchase conditions in excess of $200,000 or requirements or other terms that restrict or limit the purchasing relationships of the Company, or any customer, licensee or lessee thereof; (d) Contracts relating to any outstanding commitment for capital expenditures in excess of $100,000; (e) Contracts relating to the lease or sublease of or sale or purchase of real or personal property involving any annual expense or price in excess of $100,000 and not cancelable by the Company (without premium or penalty) within one month; (f) Contracts with any labor organization or union; (g) any Contract relating to indebtedness for borrowed money (whether incurred, assumed, guaranteed or secured by any asset) or under which the employment ofCompany has, directly or indirectly, made or would be required to make a loan, capital contribution to, or the performance of services byother investment in, any employee, consultant or independent contractor;
person (ii) each Ibex Contract relating to other than in the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability Company and other than (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal extensions of credit in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
and (xiiB) any other Ibex Contract that has a term investments in marketable securities in the ordinary course of more than 60 days and that may not be terminated by Ibex business); (without penaltyh) within 60 days after Contracts involving annual revenues to the delivery business of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value Company in excess of $10,000 150,000 (other than purchase and service orders entered into in the ordinary course of business); (i) any Contract pursuant to which the Company is subject to continuing indemnification involving more than $100,000; (j) Contracts with or for the benefit of any stockholder or affiliate of the Company and/or immediate family member thereof; (k) Contracts involving payments by the Company or its subsidiaries, in the aggregate, of more than $75,000 per year; (l) any Contract that contains restrictions with respect to payment of dividends or (B) the performance of services having a value any other distribution in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 respect of the Disclosure Schedule, including all amendments thereto. Part 2.10 Company Common Stock; (m) Contracts that could reasonably be expected to prevent or materially impair or delay the consummation of the Disclosure Schedule provides an accurate description of the terms of each Ibex Transactions; (n) any Contract that is not in written form. Each a settlement or similar agreement with any Governmental Authority or an order or consent of a Governmental Authority to which the Company or any of its subsidiaries is subject involving future activities by the Company or any of its subsidiaries; (o) any Contract identified in Part 2.10 that, to the knowledge of the Disclosure Schedule Company (based on the Company’s cost accounting procedures), will result in a loss to the Company or the Surviving Corporation after the date hereof; (p) any sales representative, distribution, design or consulting Contract; (q) any Contract pursuant to which the Company is subject to continuing “earn-out” obligations; and (r) Contracts not entered into in the ordinary course of the Company’s business other than those that, together with related contracts, are not material to the business of the Company or any of its subsidiaries. All Contracts, all contracts disclosed as “material contracts” in the Company SEC Documents and field therewith and all other contracts that are individually material to the business or operations of the Company or any of its subsidiaries (collectively, the “Material Contracts”) are valid and in full force and effect, binding obligations of the Company or any of its subsidiaries and, to the best knowledge of the Company, the valid and binding obligation of each other party thereto. None of the Company or any of its subsidiaries nor, to the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default underCompany, any Ibex Contractother party thereto is in material violation of or in material default in respect of, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person nor has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no there occurred an event has occurred, and no circumstance or condition exists, that which with the passage of time or giving of notice (with or without notice both) would constitute a material default under or lapse of time) will, permit the modification or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach termination of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Contracts. (ai) Part 2.10 Section 4(l)(i) of the Disclosure Schedule identifieslists the following written agreements or contracts (other than Real Estate Agreements) in effect as of the date of this Agreement to which either Company is a party:
(iA) each Ibex Contract relating employment agreement (other than those that are or at the Closing Date will be terminable at will by either Company without any liability or penalty to the employment of, or the performance of either Company except with respect to services by, any employee, consultant or independent contractorrendered prior to Closing);
(iiB) each Ibex Contract relating covenant not to compete that materially restricts the acquisition, transfer, use, development, sharing or license operation of any technology or any Proprietary Asseteither Company as presently conducted;
(iiiC) each Ibex Contract imposing operating lease (as lessor or lessee) of tangible personal property (other than any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services such lease calling for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technologypayments of less than $250,000 per year);
(ivD) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer material License of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guarantypatents, any pledgetrademarks, any performance or completion bondtrade names, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenuesservice marks, profitscopyrights, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by Intellectual Property received from or togranted to third parties other than licenses with Target Affiliates that terminate at or prior to Closing (each, or the performance of any services by or for, any Related Party an “IP License”) (other than Retained Software Agreements (as defined in Section 2.188(i), non-negotiated licenses for Company Intellectual Property embedded in equipment or fixtures and non-exclusive implied licenses and non-exclusive, non-negotiated licenses for the use of third-party Intellectual Property in connection with the sale of products or services);
(xE) each Ibex Contract constituting management, personal service, consulting, or relating other similar type of contract under which there exists an aggregate future liability in excess of $250,000 per contract (other than those that are or at the Closing Date will be terminable at will or upon not more than 90 days’ notice by either Company without any liability or penalty to either Company except with respect to services rendered prior to Closing and other than those entered into in connection with a Government Contract or Government Bidlicense);
(xiF) each material radio, television or newspaper advertising agreement (other than those that are or at the Closing Date will be terminable at will or upon not more than 90 days’ notice by either Company without any liability or penalty to either Company except with respect to services rendered or products sold prior to Closing);
(G) each agreement for the purchase by either of the Companies of supplies or products that calls for performance over a period of more than one year (other than those that are or at the Closing Date will be terminable at will or upon not more than 90 days’ notice by either Company without any liability or penalty to either Company except with respect to services or products purchased prior to Closing);
(H) each mortgage agreement, deed of trust, security agreement, purchase money agreement, conditional sales contract, or capital lease created or assumed by, or permitted to be created by written instrument made or accepted by, either Company (other than (1) any purchase money agreement, conditional sales contract, or capital lease evidencing liens only on tangible personal property under which there exists an aggregate future liability not in excess of $250,000 per contract or lease, (2) protective filings of financing statements under the Uniform Commercial Code, and (3) agreements evidencing liens on the Real Estate covered by a Title Commitment that are shown on a Title Commitment or are otherwise of record);
(I) any contract under which either Company has advanced or loaned any other Ibex Contract that was person amounts in the aggregate exceeding $250,000;
(J) any agreement, except with the other Company, with respect to the lending or investing of funds, including, without limitation, agreements to purchase, redeem or otherwise acquire any ownership interest in or other security of, or, except with respect to depository accounts, to provide funds to, lend or make any investment (in the form of a loan, capital contribution or otherwise) in, any other person;
(K) any outstanding power of attorney executed on behalf of either Company (other than those entered into outside in the ordinary course of business in connection with intellectual property or was inconsistent with Ibex's past practicesTax matters);
(xiiL) any each other Ibex Contract that has a term agreement or contract not made in the ordinary course of more business (other than 60 days and that may not be terminated an agreement or contract calling for payments by Ibex (without penalty) within 60 days after the delivery either Company of a termination notice by ▇▇▇▇; andless than $250,000 per year).
(xiiiii) any other Ibex Contract that contemplates or involves (ASection 4(l) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description sets forth each written agreement or contract (excluding the IT Agreements, as defined in the Transition Services Agreement) in effect as of the terms date of this Agreement or immediately prior to the Closing that relates primarily to the operation of Mervyn’s business or the ownership of its assets to which Target but not Mervyn’s is a party and the termination of which, after giving effect to the Transition Services Agreement, would have a Material Adverse Effect.
(iii) To the Knowledge of Target, each Ibex Contract that is not agreement and contract required to be listed in written form. Each Contract identified in Part 2.10 Section 4(l) of the Disclosure Schedule (collectively, “Material Contracts”) is valid valid, binding and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable except as such enforceability may be limited by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtorsinsolvency, moratorium, and (ii) rules other similar laws affecting creditors’ rights generally and by general principles of law governing specific performance, injunctive relief and other equitable remediesequity.
(civ) Except as set forth in Part 2.10 No Company is (with or without the lapse of time or the Disclosure Schedule:
(i) Ibex has not violated or breachedgiving of notice, or committed both) in breach of or in default under any default under, any Ibex Material Contract, and, to the best Knowledge of the knowledge of Ibex and the Designated ShareholdersTarget, no other Person has violated or breached, or committed party to any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that Material Contract is (with or without notice or the lapse of time) willtime or the giving of notice, or could reasonably be expected to, (Aboth) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a or in default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract, except for, in either case, defaults that do not have a Material Adverse Effect.
(dv) No Person is renegotiating, or has a right pursuant to the terms A true and complete copy of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any each Material Contract or any has been made available to Buyer, together with all written amendments, waivers and other material term or provision of any Material Contractchanges thereto.
(evi) The Contracts identified in Part 2.10 For purposes of the Disclosure Schedule collectively constitute all this Section 4(l), agreements or contracts “terminable at will” mean agreements or contracts that do not provide for specified terms of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bidcompletion, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice toexpiration, or to obtain termination or are expressly made terminable at will, regardless of whether any Consent fromcovenant of good faith and fair dealing may be implied, any Governmental Body under or as a matter of law, in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreementtermination thereof.
Appears in 1 contract
Contracts. (a) Part 2.10 2.9(a) of the Disclosure Schedule identifies, as of the date of this Agreement, each Company Contract that constitutes a “Material Contract.” For purposes of this Agreement, each of the following shall be deemed to constitute a “Material Contract”:
(i) each Ibex Contract relating to the employment of, any defined benefit pension plan under which an Acquired Corporation has or the performance of services by, may have any employee, consultant obligations or independent contractorliability;
(ii) each Ibex any Contract relating that provides for indemnification of any employee, officer or director of any of the Acquired Corporations, other than any such Contract entered into with any employee of the Company at the level of Vice President or above on the Company’s standard form included as Exhibit 10.7 to the acquisitionCompany’s Annual Report on Form 10-K for the year ended October 1, transfer, use, development, sharing or license of any technology or any Proprietary Asset2010;
(iii) each Ibex any Contract imposing any restriction on Ibex's the right or ability (A) of any Acquired Corporation to compete in any line of business in any geographic area with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex any Contract creating or involving with any agency relationship, distribution arrangement or franchise relationshipsole source supplier;
(v) each Ibex any Contract relating with any material supplier (other than a sole source supplier) to any Acquired Corporation that involved the acquisition, issuance or transfer payment of any securities;more than $5,000,000 in the Company’s last fiscal year; and
(vi) each Ibex any Contract relating to the creation of any Encumbrance (other than Contracts with respect to any asset of Ibex;
(viiAffiliates, customers or suppliers and other than Company Employee Plans) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration by or to any Acquired Corporation in an amount or having a an annual value in excess of $10,000 10,000,000 in the aggregate, or (B) contemplates or involves the performance of services by or for any Acquired Corporation having a an annual value in excess of $10,000 10,000,000 in the aggregate. (Contracts in The Company has Made Available to Parent an accurate and complete copy of each Material Contract as of the respective categories described in clauses "(i)" through "(xiii)" above are referred to in date of this Agreement as "Material ContractsAgreement.")
(b) Ibex has delivered Except as would not have (and would not reasonably be expected to Castelle accurate and complete copies of all written Contracts identified have), individually or in Part 2.10 of the Disclosure Scheduleaggregate, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of a Material Adverse Effect, each Ibex Company Contract that is not in written form. Each constitutes a Material Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, ; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
would not have (and would not reasonably be expected to have) a Material Adverse Effect: (i) Ibex none of the Acquired Corporations has not violated or breached, or committed any default under, any Ibex Material Contract, andor, to the best Knowledge of the knowledge Company, any Company Contract that is not a Material Contract; (ii) to the Knowledge of Ibex and the Designated ShareholdersCompany, no other Person has violated or breached, or committed any default under, any Ibex Company Contract;
; (iiiii) to the best Knowledge of the knowledge of Ibex and the Designated ShareholdersCompany, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could would reasonably be expected to, : (A) result in a violation or breach of any of the provisions of any Ibex Company Contract, ; (B) give any Person the right to declare receive or require a default rebate, chargeback, penalty or exercise any remedy change in delivery schedule under any Ibex Company Contract, ; (C) give any Person the right to accelerate the maturity or performance of any Ibex Company Contract, ; or (D) give any Person the right to cancel, terminate or modify any Ibex Company Contract;
; and (iiiiv) since December 31January 1, 19922010, Ibex none of the Acquired Corporations has not received any written notice or other communication regarding asserting any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Contracts. (a) Part 2.10 Schedule 5.6 of the Seller Disclosure Schedule identifies:
Schedules lists all material Contracts to which PDI is a party as of the Closing Date (but excluding the Leases, which are covered by Section 5.15) (the “Material Contracts”), including (i) each Ibex any other lease, sublease or similar Contract relating with any Person pursuant to the employment which PDI is a sublessor of, or the performance makes available for use to any Person any portion of services by, any employee, consultant or independent contractor;
premises otherwise occupied by PDI; (ii) each Ibex Contract relating to any joint venture, partnership or other Contracts involving the acquisition, transfer, use, development, sharing of profits or license of any technology or any Proprietary Asset;
losses; (iii) each Ibex any Contract imposing creating or granting any restriction on Ibex's right or ability Encumbrance (Aother than Permitted Encumbrances) to compete with upon any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
of the Acquired Assets; (iv) each Ibex any Contract creating under which PDI has granted or involving any agency relationshipreceived exclusive or non-exclusive rights or another Person processes, distribution arrangement produces or franchise relationship;
manufactures, or will process, produce or manufacture, Products; (v) each Ibex any Contract relating to the acquisitionwith a customer, issuance supplier or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract distributor involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value amounts in excess of $10,000 in the aggregate100,000; (vi) any currently effective Contract, or any expired or terminated Contract which has surviving provisions providing for indemnification of any Person by PDI with respect to Liabilities relating to the Business; and (Bvii) the performance of services any other Contract having a an aggregate value over its remaining term in excess of $10,000 100,000. Schedule 5.6 excludes any Contract that involves or is reasonably expected to involve the payment of consideration having an aggregate value of less than $100,000, but only in those cases where such Contract is not material to the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material ContractsBusiness.")
(b) Ibex PDI has delivered made available to Castelle Purchaser copies of each Material Contract that is also an Assumed Contract, which are accurate and complete copies of in all written Contracts identified in Part 2.10 of the Disclosure Schedulematerial respects, including together with all amendments and supplements thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Each Material Contract that is also an Assumed Contract constitutes a legal, valid and binding agreement of PDI. PDI is not in written form. Each Contract identified violation of, in Part 2.10 of the Disclosure Schedule is valid and breach of, or in full force and effectdefault under, andnor, to the best Knowledge of the knowledge of Ibex and the Designated ShareholdersSellers, is enforceable by Ibex in accordance with its terms, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no there occurred an event has occurred, and no circumstance or condition exists, that which (with or without notice or lapse of timetime or both) will, or could reasonably be expected to, (A) result in would constitute a violation or breach of any of the provisions of any Ibex Contractof, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any such Material Contract or any other material term or provision of any Material that is also an Assumed Contract, by PDI.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Kv Pharmaceutical Co /De/)
Contracts. Except for contracts, commitments, plans, agreements and licenses (atrue and complete copies of which have been delivered to AMRI) Part 2.10 of described on SCHEDULE 3.14 hereto (the Disclosure Schedule identifies"Material Contracts"), NCE is not a party to or subject to:
(i) each Ibex Contract relating to any plan or contract providing for bonuses, pensions, options, stock purchases, deferred compensation, retirement payments, profit sharing, collective bargaining or the employment oflike, or the performance of services by, any employee, consultant contract or independent contractoragreement with any labor union;
(ii) each Ibex Contract relating to the acquisition, transfer, use, development, sharing any employment contract or license of any technology or any Proprietary Assetcontract for personal services;
(iii) each Ibex Contract imposing any restriction on Ibex's right contract or ability (A) agreement relating to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal capital expenditures in any other manner with any other Person, or (C) develop or distribute any technologyexcess of $10,000 per annum;
(iv) each Ibex Contract any other contracts or agreements creating any obligations of NCE of $25,000 or involving more per annum with respect to any agency relationship, distribution arrangement such contract or franchise relationshipagreement not specifically disclosed elsewhere in this Agreement;
(v) each Ibex Contract relating to any contract or agreement for more than $10,000 which by its terms does not terminate or is not terminable without penalty by such entity or any successor or assignee on or at any time after the acquisition, issuance or transfer of any securitiesClosing Date;
(vi) each Ibex Contract relating to any contract for more than $10,000 not made in the creation ordinary course of any Encumbrance with respect to any asset of Ibexbusiness;
(vii) each Ibex Contract involving any contract currently in effect containing covenants limiting the freedom of NCE to compete in any line of business or incorporating with any guaranty, any pledge, any performance person or completion bond, any indemnity or any surety arrangemententity;
(viii) each Ibex Contract creating any license agreement for more than $10,000 (as licensor or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilitieslicensee);
(ix) each Ibex Contract relating to the purchase or sale of any product indenture, mortgage, promissory note, loan agreement, guaranty or other asset by agreement or tocommitment for the borrowing of money for more than $10,000 each, or $25,000 in the performance of any services by or for, any Related Party (as defined in Section 2.18)aggregate;
(x) each Ibex Contract constituting any contract or relating to a Government Contract agreement with any officer, employee, director or Government Bid;stockholder of NCE or with any persons or organizations controlled by or affiliated with any of them; or
(xi) any other Ibex Contract that was entered into outside the ordinary course of business joint venture, partnership or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregatesimilar agreement. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 of the Disclosure Schedule, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that NCE is not in written form. Each Contract identified in Part 2.10 default under any of the Disclosure Schedule is Material Contracts, and NCE does not have any knowledge of conditions or facts that with notice or passage of time, or both, would constitute a default. All Material Contracts have been duly authorized by NCE and, to the knowledge of NCE, are valid and are in full force and effecteffect and constitute legal, valid and binding obligations of NCE, and, to the best of the knowledge of Ibex NCE, the other parties thereto, and the Designated Shareholders, is are enforceable by Ibex in accordance with its their respective terms, subject in each case, except to (i) laws of general application relating to the extent that enforceability may be limited by applicable bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996laws affecting the enforcement of creditors' rights generally and subject to general principles of equity.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract
Contracts. (a) Part 2.10 Section 3.10(a) of the Company Disclosure Schedule identifies each Contract to which the Company is a party, or by which it is bound, that constitutes a Material Contract as of the date of this Agreement and identifies, with respect to each Material Contract, the clause of Section 3.10(a) to which it applies. For purposes of this Agreement, each of the following to which the Company is a party or by which it is bound as of the date of this Agreement (other than (1) nondisclosure agreements entered into (x) in the ordinary course of business consistent with past practice or (y) in connection with discussions, negotiations and transactions related to this Agreement or other potential strategic transactions or (2) any Employee Plan) constitutes a “Material Contract”:
(i) each Ibex any Contract relating that is a settlement, conciliation or similar agreement with or approved by any Governmental Body and pursuant to which (A) the employment of, Company will be required after the date of this Agreement to pay any monetary obligations or (B) that contains material obligations or limitations on the performance of services by, any employee, consultant or independent contractorCompany’s conduct;
(ii) each Ibex any Contract relating (A) materially limiting the freedom or right of the Company to engage in any line of business or to compete with any other Person in any location or line of business, (B) containing any “most favored nations” terms and conditions (including with respect to pricing) granted by the acquisitionCompany, transferor (C) containing exclusivity obligations or otherwise materially limiting the freedom or right of the Company to sell, use, development, sharing distribute or license of manufacture any technology products or services for any Proprietary Assetother Person;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business requires by its terms or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) is reasonably expected to require the payment or delivery of cash or other consideration to the Company in an amount or having a value in excess of $10,000 2,000,000 in the aggregatefiscal year ending December 31, 2019, or (B) by the performance of services Company in an amount having a value in excess of $10,000 2,000,000 in the aggregate. fiscal year ending December 31, 2019, and in each case (Contracts A) that cannot be cancelled by the Company without penalty or further payment without more than sixty (60) days’ notice and (B) excluding commercially available off-the-shelf software licenses and Software-as-a-Service offerings, generally available patent license agreements, material transfer agreements, clinical trial agreements and non-exclusive outbound license agreements (in each case, entered into in the respective categories described ordinary course of business);
(iv) any Contract relating to Indebtedness in clauses "excess of $500,000 (iwhether incurred, assumed, guaranteed or secured by any asset) of the Company;
(v) any Contract with any Person constituting a material joint venture, collaboration, partnership or similar profit sharing arrangement;
(vi) any Contract that by its express terms requires the Company, or any successor to, or acquirer of, the Company, to make any payment to another Person as a result of a change of control of the Company (a “Change of Control Payment”) or gives another Person a right to receive or elect to receive a Change of Control Payment;
(vii) any Contract that prohibits the declaration or payment of dividends or distributions in respect of the capital stock of the Company, the pledging of the capital stock or other equity interest of the Company or the issuance of any guaranty by the Company;
(viii) any (A) In-bound License and (B) Out-bound License;
(ix) any Contract pursuant to which the Company has continuing obligations or interests involving (A) “milestone” or other similar contingent payments, including upon the achievement of regulatory or commercial milestones which would result in a payment in excess of $2,000,000, or (B) payment of royalties or other amounts calculated based upon any revenues or income of the Company, in each case that cannot be terminated by the Company without penalty without more than sixty (60) days’ notice;
(x) each Contract for the acquisition or divestiture of a business or of material assets that contains continuing representations, covenants, indemnities or other obligations (including “earn out” or other contingent payment obligations)" through ", but excluding any material transfer agreements, clinical trial agreements and non-exclusive licenses, in each case, in the ordinary course of business;
(xi) any Contract that relates to any swap, forward, futures, or other similar derivative transaction with a notional value in excess of $500,000;
(xii) any Contract between the Company and any Governmental Body;
(xiii) any Contract for material Leased Real Property;
(xiv) any other Contract that is currently in effect and has been filed (or is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act; and
(xv) any Contract (A) with any Affiliate, director, executive officer (as such term is defined in the Exchange Act)" above are referred , Person holding 5% or more of the Shares, or, to the knowledge of the Company, any Affiliate (other than the Company) or immediate family member of any of the foregoing or (B) in this Agreement as "Material Contractswhich any of the foregoing Persons has a direct or indirect material financial interest.")
(b) Ibex The Company has either delivered or made available to Castelle Parent an accurate and complete copies copy of all written Contracts identified each Material Contract or has publicly filed each Material Contract in Part 2.10 the Electronic Data Gathering, Analysis and Retrieval (▇▇▇▇▇) database of the Disclosure ScheduleSEC. Neither the Company nor, including all amendments thereto. Part 2.10 to the knowledge of the Disclosure Schedule provides an accurate description Company as of the terms date of each Ibex this Agreement, any other party is in material breach of, or material default under, any Material Contract and neither the Company nor to the knowledge of the Company, any other party to a Material Contract has taken or failed to take any action that is not in written formwith or without notice, lapse of time or both would constitute a material breach of or material default under any Material Contract. Each Material Contract identified in Part 2.10 is, with respect to the Company and, to the knowledge of the Disclosure Schedule is Company, each other party thereto, a valid and binding agreement in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, except as such enforcement may be subject to (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general application applicability relating to bankruptcy, insolvency and the relief of debtorsor affecting creditors’ rights, and (ii) rules by general equitable principles. Since January 1, 2018 through the date of law governing specific performancethis Agreement, injunctive relief and other equitable remedies.
(c) Except as set forth in Part 2.10 of the Disclosure Schedule:
(i) Ibex Company has not violated received or breached, or committed delivered any default under, notice regarding any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a material violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms of any Ibex Contract to renegotiate, any amount paid or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 of the Disclosure Schedule collectively constitute all of the Contracts necessary to enable Ibex to conduct its business in the manner in which its business is currently being conducted.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex that has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreementsince been cured.
Appears in 1 contract
Sources: Merger Agreement (Forty Seven, Inc.)
Contracts. (a) Part 2.10 Setion 3.13(a) of the Disclosure Schedule identifies:Letter sets forth a list, as of the date hereof, of each of the following contracts or agreements or arrangements to which NNGC is a party, or by which NNGC or any of its properties are bound (each contract or agreement or arrangement set forth in Section 3.13(a) of the Disclosure Letter being referred to herein as a "Material Contract"; provided that no NNGC Plan or Sellers Plan shall be a Material Contract):
(i) each Ibex Contract relating to the employment ofany commitment, agreement, note, loan, evidence of indebtedness, letter of credit or the performance of services by, any employee, consultant or independent contractor;
(ii) each Ibex Contract relating to the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary Asset;
(iii) each Ibex Contract imposing any restriction on Ibex's right or ability (A) to compete with any other Person, (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, or (C) develop or distribute any technology;
(iv) each Ibex Contract creating or involving any agency relationship, distribution arrangement or franchise relationship;
(v) each Ibex Contract relating to the acquisition, issuance or transfer of any securities;
(vi) each Ibex Contract relating to the creation of any Encumbrance with respect to any asset of Ibex;
(vii) each Ibex Contract involving or incorporating any guaranty, any pledge, any performance or completion bond, any indemnity or any surety arrangement;
(viii) each Ibex Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(ix) each Ibex Contract relating to the purchase or sale of any product or other asset by or to, or the performance of any services by or for, any Related Party (as defined in Section 2.18);
(x) each Ibex Contract constituting or relating to a Government Contract or Government Bid;
(xi) any other Ibex Contract that was entered into outside the ordinary course of business or was inconsistent with Ibex's past practices;
(xii) any other Ibex Contract that has a term of more than 60 days and that may not be terminated by Ibex (without penalty) within 60 days after the delivery of a termination notice by ▇▇▇▇; and
(xiii) any other Ibex Contract that contemplates or involves (A) the payment or delivery of cash or other consideration in an amount or having a value in excess of $10,000 in the aggregate, or (B) the performance of services having a value in excess of $10,000 in the aggregate. (Contracts in the respective categories described in clauses "(i)" through "(xiii)" above are referred to in this Agreement as "Material Contracts.")
(b) Ibex has delivered to Castelle accurate and complete copies of all written Contracts identified in Part 2.10 guarantee of the Disclosure Scheduleindebtedness for borrowed money of others that Sellers reasonably anticipate will, including all amendments thereto. Part 2.10 of the Disclosure Schedule provides an accurate description of the terms of each Ibex Contract that is not in written form. Each Contract identified in Part 2.10 of the Disclosure Schedule is valid and in full force and effect, and, to the best of the knowledge of Ibex and the Designated Shareholders, is enforceable by Ibex in accordance with its terms, subject to (i) laws involve aggregate payments by NNGC of general application relating to bankruptcy, insolvency and more than $200,000 within the relief remaining term of debtors, and such agreement;
(ii) rules any lease under which NNGC is the lessor or lessee of law governing specific performancereal or personal property, injunctive relief which lease (A) cannot be terminated by NNGC without penalty upon not more than 180 calendar days' notice and (B) involves an annual base rental in excess of $1,000,000;
(iii) any contracts or agreements containing covenants limiting the freedom of NNGC to engage in any line of business or geographic area or compete with any Person;
(iv) any employment agreements;
(v) any pending sale of real or personal property of NNGC (other equitable remediesthan sales of natural gas, natural gas liquids, or other terms of inventory in the ordinary course of business) in excess of $100,000;
(vi) any gas purchase contracts, gas sales contracts, gas processing agreements, gas storage agreements, transportation agreements, natural gas liquids sales contracts, and gathering agreements (1) providing for receipt or payment by NNGC of more than $3,000,000 annually or (2) which may not be terminated without payment or penalty with notice of one (1) year or less;
(vii) any purchase order or contract requiring a capital expenditure or a commitment for a capital expenditure not included in the capital forecast previously provided to Buyer in the Summary Information Memorandum dated July 2002 and in excess of $100,000;
(viii) any obligation to make future payments, contingent or otherwise, in excess of $100,000 arising out of or relating to the acquisition or disposition of any business, assets, or stock of other companies by NNGC;
(ix) any purchase order not in the ordinary course of business and greater than $250,000;
(x) any hedging arrangements, forward sales contracts and derivative arrangements in excess of a notional amount of $500,000 and a term of over one year; or
(xi) any NNGC regulatory rate settlement agreement approved by the FERC since the NNGC's 1998 Rate Case Settlement Agreement approved by the FERC on June 18, 1999.
(b) Section 3.13(b) of the Disclosure Letter sets forth a list, as of the date hereof, of each contract or agreement that NNGC has with an Affiliate (an "Affiliate Contract").
(c) Except as set forth To the Sellers' Knowledge, NNGC is not in Part 2.10 of the Disclosure Schedule:
(i) Ibex has not violated breach or breached, or committed any default under, any Ibex Contract, and, to the best of the knowledge of Ibex and the Designated Shareholders, no other Person has violated or breached, or committed any default under, any Ibex Contract;
(ii) to the best of the knowledge of Ibex and the Designated Shareholders, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Ibex Contract, (B) give any Person the right to declare a default or exercise any remedy under any Ibex Contract, (C) give any Person the right to accelerate the maturity or performance of any Ibex Contract, or (D) give any Person the right to cancel, terminate or modify any Ibex Contract;
(iii) since December 31, 1992, Ibex has not received any notice or other communication regarding any actual or possible violation or breach of, or default under, any Ibex Contract; of the Material Contracts. Each Material Contract is a valid agreement, arrangement or commitment of NNGC, enforceable against NNGC in accordance with its terms and
(iv) Ibex has not waived any of its material rights under any Material Contract.
(d) No Person is renegotiating, or has a right pursuant to the terms Sellers' Knowledge, is a valid agreement, arrangement or commitment of any Ibex Contract each other party thereto, enforceable against such party in accordance with its terms, except in each case where enforceability may be limited by bankruptcy, insolvency or other laws affecting creditors' rights generally and except where enforceability is subject to renegotiate, any amount paid the application of equitable principles or payable to Ibex under any Material Contract or any other material term or provision of any Material Contract.
(e) The Contracts identified in Part 2.10 remedies. True and complete copies of the Disclosure Schedule collectively constitute all of the Material Contracts necessary and Affiliate Contracts have heretofore been made available to enable Ibex to conduct its business in the manner in which its business is currently being conductedBuyer.
(f) Part 2.10 of the Disclosure Schedule identifies and provides a brief description of each proposed Contract as to which any bid, offer, award, written proposal, term sheet or similar document has been submitted or received by Ibex since January 1, 1996.
(g) Part 2.10 of the Disclosure Schedule provides an accurate description and breakdown of Ibex's backlog under Ibex Contracts.
(h) Except as set forth in Part 2.10(h) of the Disclosure Schedule, Ibex has not entered into and is not negotiating any Government Contract or Government Bid, and Ibex is not and will not be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Body under or in connection with any Government Contract or Government Bid as a result of or by virtue of (A) the execution, delivery of performance of this Agreement or any of the other agreements referred to in this Agreement, or (B) the consummation of the Merger or any of the other transactions contemplated by this Agreement.
Appears in 1 contract