Contracts. (a) Section 4.15(a) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of the following types or having the following terms to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”): (i) all Contracts providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000; (ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person; (iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000; (iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months; (v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries; (vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000; (vii) all partnership or joint venture Contracts; (viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year; (ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company; (x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise; (xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand; (xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries; (xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties; (xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries; (xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and (xvi) any other Contract which involves consideration in excess of $100,000 per year. (i) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract. (c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement. (d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 2 contracts
Sources: Merger Agreement (Gleacher & Company, Inc.), Merger Agreement (Broadpoint Securities Group, Inc.)
Contracts. (a) Section 4.15(a) 5.12 of the Disclosure Schedule sets forth a complete and accurate list of each Contract all of the following types or having the following terms Contracts to which the any Transferred Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets it is or may be bound as of the date hereof (collectively, the “Company Contracts”):bound:
(ia) all Contracts providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate sale of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, assets of any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien Transferred Company other than Permitted Liens, in the ordinary course of business or (B) for the grant to any Contract of guarantee of credit in favor Person of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or preferential rights to purchase any of its Subsidiaries is a lessor or lessee of any real property or such assets other than in the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line ordinary course of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts each case for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,0001,000,000;
(viib) all partnership Contracts for joint ventures, partnerships or joint venture Contractssharing of profits or proprietary information;
(viiic) all Contracts containing covenants not to compete in any line of business or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearwith any Person in any geographical area;
(ixd) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition acquisition (by merger, purchase of stock or acquisition assets or otherwise) of any operating business enterprise or material assets or the capital stock of any interest other Person for consideration in excess of $2,000,000, other than any such acquisitions in the ordinary course of business enterpriseor reflected in the capital expenditure budget information provided to Parent;
(xie) all outstanding Contracts between of Indebtedness or among guaranty or surety of material Indebtedness or indemnification of any amount in excess of $500,000, other than in the ordinary course of business;
(Af) the any Contract under which any Transferred Company has advanced or loaned any amount to any of its Subsidiariesdirectors, officers and employees;
(g) any material Contracts between any of the Transferred Companies, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), ED&F or any Related Party (other than the Company)Affiliate of ED&F, on the other hand;
(xiih) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiariescollective bargaining Contracts;
(xiiii) Contracts which are (A) outside the ordinary course of business for the purchasestorage, acquisitiontreatment, sale disposal, investigation or disposition remediation of Hazardous Substances;
(j) Contracts providing for indemnification of any assets officer or properties director of a Transferred Company, other than any existing directors’ and officers’ insurance policy and as provided in organizational documents of any such company, as currently in effect; and
(k) other Contracts (other than those listed in clauses (a) through (j) of this Section 5.12 and other than the Employment Contracts) (A) with a term longer than 180 days from the date hereof that involve payments by any Transferred Company in excess of $1,000,000 per year; or (B) for with a term less than one (1) year from the grant to date hereof that involve payments by any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Transferred Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
(i1,000,000, that are not terminable without premium or penalty on less than 30 days’ notice, in each case, such Contracts that are related primarily to a business included in the Business. Except as set forth in Section 5.12 of the Disclosure Schedule, and assuming due authorization, execution and delivery by the other parties thereto, each Contract listed in Section 5.12 of the Disclosure Schedule, each Employment Contract, each Lease listed in Section 5.9(a) Each of the Disclosure Schedule and each material Contract pertaining to Intellectual Property to which a Transferred Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companyparty is valid and is binding on each Transferred Company party thereto and, as the case may beto ED&F’s Knowledge, and to the Knowledge of the Company as of the date hereof, against each other party thereto, thereto and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on in Section 4.15(c) 5.12 of the Disclosure Schedule, no Transferred Company nor, to ED&F’s Knowledge, any other party thereto is in default or breach in any material respect under the terms of, nor has any Transferred Company received any notice of any material default or breach under, any such Contract is terminable or cancelable as Lease, and, to ED&F’s Knowledge, no event or circumstance has occurred that, with the passage of time or the giving of notice or both, would constitute a result material default thereunder or would permit material modification, acceleration, or termination of any such Contract or the loss of any material benefit thereunder. ED&F has delivered or made available to Parent copies of all of the consummation written Contracts listed in Section 5.12 of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct Disclosure Schedule and of all of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement)written Employment Contracts that are true, correct and complete in all material respects, together with all material amendments thereto.
Appears in 2 contracts
Sources: Transaction Agreement (Shermen WSC Acquisition Corp), Transaction Agreement (Shermen WSC Acquisition Corp)
Contracts. (a) Section 4.15(a3.13(a) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms Contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts providing for the employment, retention, bonus, severance or other service relationship each Contract with any current customer or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in supplier that is required to be listed on Section 4.15(a) 3.22 of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (other except personal property leases and installment and conditional sales agreements having aggregate payments of less than employment contracts$20,000 and with terms of less than one year);
(iii) each joint venture, partnership or Contract involving a sharing of profits, losses, costs or liabilities with any current or former officer, director, stockholder, employee, consultant, agent or other representative Person;
(iv) each Contract containing any covenant that purports to restrict the business activity of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting limit the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or to compete with any other Person or requiring exclusive dealings by the Company or any Person;
(v) each power of its Subsidiariesattorney;
(vi) each Contract for Debt in excess of $50,000;
(Avii) all Contracts each Contract providing for the purchase payment of materialsany cash or other compensation or benefits to an employee, inventory, supplies or equipment (including, without limitation, computer hardware and Software)consultant, or director upon the consummation of the transactions contemplated by this Agreement if such payments would not become due or payable under such Contracts but for the provision of services, involving annual payments of more than $100,000, containing transactions contemplated by this Agreement;
(viii) each Contract with any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company labor union or any of its Subsidiaries; and (B) notwithstanding (A)bonus, all Contracts (i) with material customers of the business of the Company pension, profit sharing, retirement or deferred compensation plan, whether formal or informal, or any of its Subsidiaries, severance agreement or arrangement;
(iiix) for the sale by each Contract under which the Company or any of its Subsidiaries of materials, supplies, inventory has advanced or equipment (including, without limitation, computer hardware and Software), or (iii) for loaned to any other Person amounts in the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of aggregate exceeding $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company10,000;
(x) all Contracts relating to the future disposition each franchise, dealership, vendor, manufacturing or acquisition of any business enterprise or any interest in any business enterpriseservice center agreements;
(xi) all Contracts between or among (A) the Company or each Contract with any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xii) any settlement agreement;
(xiii) Contracts which are (A) outside the ordinary course each employment or consulting Contract or other Contract with any of business for the purchasetheir officers, acquisitionmanagers, sale partners, directors or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or propertiesemployees;
(xiv) all engagement letters each material Contract concerning Intellectual Property or IT Assets, including each (A) material Intellectual Property License, (B) material Contract between any Person and the Company relating to the transfer, development, maintenance or use of Intellectual Property or IT Assets or the development or transmission of data, or the use, modification, framing, linking, advertisement or other practices with clients respect to Internet websites and (C) consent or settlement Contracts governing the use, validity or enforceability of Intellectual Property or IT Assets, in each case except for Contracts with Company customers and end users for the license and use of Company products and services entered into in the Ordinary Course of Business;
(xv) each confidentiality agreement and non-disclosure agreement still in effect, except not such agreements on the Company’s standard forms of such agreements made available to the Buyer; and;
(xvi) any other agreement material to the Company or any of its Subsidiaries under which any amount is or may become payable to not entered into in the Company or any Ordinary Course of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per yearBusiness.
(ib) The Company has delivered to Buyer and Merger Sub a correct and complete copy of each written Material Contract, together with all amendments, exhibits, attachments, waivers or other changes thereto. Section 3.13(b) of the Disclosure Schedule contains an accurate and complete description of all material terms of all oral Material Contracts (if any).
(c) Each Company Material Contract is legal, valid, binding, enforceable, in full force and effect and will continue to be legal, valid, binding and enforceable against on identical terms following the Company Closing Date. Except as specifically disclosed and described in Section 3.13(c) of the Disclosure Schedule, (i) no Material Contract has been materially breached or the party to such Company Contract which is a Subsidiary of canceled by the Company, as the case may beany of its Subsidiaries or, and to the Knowledge of the Company as of the date hereofCompany, against each any other party thereto, and (ii) the Company or each of its Subsidiaries has performed all material obligations under such Material Contracts required to be performed by the Company or such Subsidiary, (iii) to the Knowledge of the Company, there is in full force and effectno event which, upon giving of notice or lapse of time or both, would constitute a breach or default under any such Material Contract or would permit the termination, modification or acceleration of such Material Contract, and (iiiv) neither the Company nor any of its Subsidiaries norhas assigned, to the Knowledge of the Company as of the date hereof, any other party, is in material breach delegated or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise otherwise transferred to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or Person any of its Subsidiaries rights, title or the use of its properties or assets or interest under any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement)such Material Contract.
Appears in 2 contracts
Sources: Stock Purchase and Merger Agreement (Imation Corp), Stock Purchase and Merger Agreement (Imation Corp)
Contracts. (a) Section 4.15(a4(o) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types contracts and other agreements, whether written or having the following terms oral, to which any of the Company or any of its Subsidiaries is a party or otherwise bound (except those agreements contemplated by which this Agreement or in connection with the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”restructuring in connection therewith):
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance lease payments which extend over a period of more than 180 days or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder include consideration in excess of $50,000250,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and 180 days or involve consideration in excess of $100,000250,000;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(v) any material agreement imposing confidentiality obligations on the Company or its Subsidiaries;
(vi) any contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world;
(vii) all partnership or joint venture Contractsany agreement with the Company and its Affiliates (other than the Company and its Subsidiaries);
(viii) all Contracts any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or purchase orders relating to capital expenditures involving total payments by other plan or arrangement for the Company benefit of its current or former directors, officers, and its Subsidiaries of more than $100,000 per yearemployees;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Companycollective bargaining agreement;
(x) all Contracts relating to any agreement for the future disposition or acquisition employment of any business enterprise individual on a full-time, part-time, consulting, or any interest other basis providing annual compensation in any business enterpriseexcess of $50,000 or providing material severance benefits;
(xi) all Contracts between any contract, agreement or among (A) the Company other arrangement with any officer or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity director of the Company or any of its Subsidiaries;
(xii) any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees;
(xiii) Contracts any agreement under which are (A) outside the ordinary course consequences of business for a default or termination could have a material adverse effect on the purchasebusiness, acquisitionfinancial condition, sale operations or disposition results of any assets operations of the Company or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;its Subsidiaries; or
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.
250,000. The Company has delivered to the Buyer a correct and complete copy of each written agreement (ias amended) Each Company Contract listed in Section 4(o) of the Disclosure Schedule and a written summary setting forth the material terms and conditions of each oral agreement referred to in Section 4(o) of the Disclosure Schedule. With respect to each such agreement: (A) the agreement is legal, valid, binding binding, enforceable (except as enforceability may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting or relating to creditors' rights generally, and by general equitable principles) and in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable against (except as enforceability may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting or relating to creditors' rights generally, and by general equitable principles), and in full force and effect on identical terms following the consummation of the transactions contemplated hereby, (C) the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may benot, and to the Knowledge of the Company as of the date hereofCompany, against each no other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (D) or loss of any benefits under any Company Contract.
(c) The the Company has delivered not, and to Parent complete and accurate copies the Knowledge of each Company Contract through the date hereof and there Company, no other party has been no material modification, waiver or termination of any Company Contract or repudiated any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Northland Cranberries Inc /Wi/), Stock Purchase Agreement (Sun Capital Partners Ii Lp)
Contracts. (a) Section 4.15(a3(j) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having contracts and other agreements relating to the following terms Business to which the Company or any of its Subsidiaries Seller is a party or by which with respect to the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):Acquired Assets:
(i) all Contracts providing Any agreement (or group of related agreements) for the employment, retention, bonus, severance lease of personal property to or other service relationship with from any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000Person;
(ii) all material Contracts (other than employment contracts) with any current Any agreement concerning a partnership or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling personjoint venture;
(iii) Any agreement (Aor group of related agreements) all instruments relating to under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any notecapitalized lease obligation under which it has imposed a Security Interest on any of its assets, bond, deed of trust, mortgage, indenture tangible or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000intangible;
(iv) all lease, sublease, rental, license Any confidentiality or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) monthsnon-competition agreement;
(v) all Contracts containing any covenant Any profit sharing, deferred compensation, severance, or provision limiting other material plan or arrangement for the freedom or ability benefit of the Company current or any of its Subsidiaries to engage former employees (other than in any line of business, engage in business in any geographical area or compete connection with any other Person or requiring exclusive dealings by the Company or any of its SubsidiariesClient Contract);
(vi) (A) all Contracts Any agreement for the purchase employment of materialsany individual on a full-time, inventorypart-time, supplies or equipment (including, without limitation, computer hardware and Software)consulting, or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other basis (other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or in connection with any of its Subsidiaries; and (B) notwithstanding (AClient Contract), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000;
(vii) all partnership Any agreement under which it has advanced or joint venture Contractsloaned any amount to any of the directors, officers, and employees of Seller other than expense advances made in the ordinary course of business;
(viii) all Contracts Any agreement (other than a Client Contract) under which the consequences of a default or purchase orders relating to capital expenditures involving total payments by termination could have a material adverse effect on the Company and its Subsidiaries business, financial condition, operations, results of more than $100,000 per year;operations, or future prospects of the Business; or
(ix) all Contracts relating to licenses Any other agreement (or group of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (Arelated agreements) the Company or any performance of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
5,000 (iother than a Client Contract). Seller has delivered to Buyer a correct and complete copy of each written agreement listed in Section 3(j) Each Company Contract of the Disclosure Schedule (as amended to date) and a written summary setting forth the material terms and conditions of each oral agreement referred to therein. With respect to each such agreement: (A) the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effecteffect in all material respects; (B) to Seller’s Knowledge, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, no party is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (C) or loss of any benefits under any Company Contract.
(c) The Company to Seller’s Knowledge, no party has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or repudiated any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Futuris Co), Asset Purchase Agreement (Recruiter.com Group, Inc.)
Contracts. (a) Section 4.15(a) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of 4.12 lists the following types or having the following terms contracts and other agreements to which the Company or any of its Subsidiaries Subsidiary is a party or by which the Company or any of its Subsidiaries or its or their properties or assets Subsidiary is or may be bound as of the date hereof (collectively, the “Company Contracts”):bound:
(ia) all Contracts providing any agreement (or group of related agreements) for the employment, retention, bonus, severance lease of personal property to or other service relationship with from any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000Person;
(iib) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of materialssupplies, inventory, supplies products or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and or involve consideration or performance having a value in excess of $100,000£5,000;
(viic) all partnership or joint venture Contractsany agreements and licenses in respect of Intellectual Property;
(viiid) all Contracts any partnership, joint venture, operating or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearsimilar agreement;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (Be) any Stockholder agreement (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xiigroup of related agreements) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any Subsidiary has created, incurred, assumed or guaranteed any indebtedness or any capitalized lease obligation or under which a Lien has been imposed on any of the Company’s or its Subsidiaries’ assets;
(f) any confidentiality or noncompetition agreement or any other agreement that limits the freedom of the Company or any Subsidiary (i) to compete in any line of business with any Person or in any area or (ii) to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any of its assets;
(g) any agreement under which the Company or any Subsidiary has advanced or loaned any amount of money to a Seller or any Shareholder, officer or employee of the Company or any Subsidiary;
(h) any other agreement (or group of related agreements) (i) material to the Business of the Company and its Subsidiaries agrees that is not cancelable by the Company or any Subsidiary on notice of not longer than thirty (30)-days without liability, penalty or premium of any kind, except liability that arises as a matter of Law upon termination of employment, or (ii) any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings;
(i) any agreement (or group of related agreements) under which the consequences of a default or termination would reasonably be expected to indemnify have a Material Adverse Effect;
(j) any Personagreement for which the Company or any Subsidiary is obligated to obtain the consent of any other party thereto upon consummation of the transactions contemplated by this Agreement;
(k) any contract, agreement or other arrangement entitling any Person to any severance or other benefits upon a change of control of the Company; and
(xvil) any other Contract which involves consideration in excess agreement that is material to the Business or the Company’s operations. The Company has made available to Buyer a true, correct and complete copy of $100,000 per year.
each written agreement listed on Schedule 4.12 (as amended to date) and a brief written summary setting forth the terms and conditions of any oral agreement referred to on Schedule 4.12. With respect to each such agreement: (i) Each Company Contract the agreement is legal, valid, binding and enforceable against the Company or the party its Subsidiaries, as applicable, in accordance with its terms and, to such Company Contract which is a Subsidiary of the Company’s Knowledge, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, thereto and is in full force and effect, and will continue to be so on identical terms immediately after giving effect to the consummation of the transactions contemplated hereby; (ii) neither the Company nor any of its Subsidiaries norSubsidiary is in material breach or default and, to the Knowledge of the Company as of the date hereofCompany’s Knowledge, any no other party, party is in material breach or default; and (iii) to the Company’s Knowledge, and no event party has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to repudiated any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contractagreement. Except as set forth on Section 4.15(c) MEM Consumer Finance Limited has complied in all material respects with the terms and conditions of the Disclosure Scheduleagreement for an overdraft facility with the Bank of Scotland dated 16 March 2006, no Company Contract is terminable or cancelable as a result including, but not limited to, the pre-conditions to be met prior to utilisation of such facility and the consummation ongoing obligations of the transactions contemplated in this Agreementsuch facility.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 2 contracts
Sources: Share Purchase Agreement (Purpose Financial Holdings, Inc.), Share Purchase Agreement (Purpose Financial Holdings, Inc.)
Contracts. (a) Section 4.15(a) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of 7.15 lists the following types or having the following terms contracts and other --------- ------------- agreements currently in effect to which the any Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00015,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (iirelated agreements) for the sale by the Company furnishing or any receipt of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and from the Closing Date or involve consideration in excess of $100,00015,000;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $15,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any agreement among the Shareholder and her Affiliates (other than JCR);
(vii) all partnership any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or joint venture Contractsother material plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) all Contracts any written agreement for the employment of any individual on a full-time, part-time, consulting, or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries other basis providing annual compensation in excess of more than $100,000 per year15,000 or providing severance benefits;
(ix) all Contracts relating any agreement under which it has advanced or loaned any amount to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is directors, officers, and employees outside the licensor or licensee thereunder) material to the business Ordinary Course of the CompanyBusiness;
(x) all Contracts relating any agreement under which the consequences of a default or termination would reasonably be expected to have a material adverse effect on the business, financial condition, operations, results of operations, or future disposition or acquisition prospects of any business enterprise or any interest in any business enterprise;JCR; or
(xi) all Contracts between any other agreement (or among (Agroup of related agreements) the Company or any performance of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
15,000. The Shareholder has delivered to the LRA Companies a correct and complete copy of each written agreement listed in Schedule 7.15 (ias amended to date) Each Company Contract and a ------------- written summary setting forth the terms and conditions of each oral agreement referred to in Schedule 7.15. With respect to each such agreement: (A) the ------------- agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and ; (iiB) neither the Company JCR is not a party nor any of its Subsidiaries nor, to the Shareholder's Knowledge of the Company as of the date hereof, is any other party, is party in material breach or default, and to the Shareholder's Knowledge, no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement, and (C) or loss JCR has not repudiated any provision of any benefits under such agreement nor to the Shareholder's Knowledge has any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination other party repudiated any provision of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementsuch agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 2 contracts
Sources: Plan and Agreement of Reorganization and Merger (Us Legal Support Inc), Reorganization and Merger Agreement (Us Legal Support Inc)
Contracts. (a) Section 4.15(a) 3.16 of the Disclosure Schedule sets forth of Exceptions contains a complete and accurate list of each Contract of the following types or having the following terms contracts and other agreements to which the Company is a party, whether written or oral, other than those contracts and other agreements that have been fully performed by all parties thereto and under which no party thereto has any rights or obligations:
(a) any agreement (or group of related agreements) for the lease of personal property to or from any Person for over $50,000 in any 12-month period;
(b) any agreement for the purchase, sale or lease of real property;
(c) any agreement (or group of related agreements) for the purchase or sale of any raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services for which the Company was paid (or paid) more than $50,000 in either 2013 or 2014 or is entitled to receive (or obligated to pay) more than $50,000 in any 12-month period commencing after December 31, 2014;
(d) any agreement granting any Person the exclusive right to market, sell or distribute any of the Company’s products, whether in any geographic territory, to any customer or account, or otherwise;
(e) any agreement concerning a partnership, joint venture or other similar arrangement involving a sharing of profits and losses with any Person;
(f) except for agreements relating to trade receivables entered into in the Ordinary Course of Business, any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any Indebtedness, or any capitalized lease obligation or under which it has imposed a Lien (other than a Permitted Lien) on any of its Subsidiaries is a party assets, tangible or by intangible;
(g) any agreement which materially restricts the Company from competing in any line of business or geographic area;
(h) any profit-sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the benefit of its Subsidiaries current or its or their properties or assets is or may be bound as of the date hereof (collectivelyformer directors, the “Company Contracts”):officers, and employees;
(i) all Contracts any collective bargaining agreement;
(j) any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis (including leased persons);
(k) any agreement pertaining to the marketing, sale or distribution of any of the Company’s products (including any agreements creating an agency relationship or providing for the employment, retention, bonus, severance or other service relationship with resale of any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure ScheduleCompany’s products), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000;
(iil) all material Contracts (other than employment contracts) with any current or former officeragreement requiring the Company to pay to any Person a royalty, director, stockholder, employee, consultant, agent commission or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services)payment, the performance amount of which will extend over a period is based in whole or in part on the sales of more than one (1) year and involve consideration in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments products by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(xm) all Contracts relating any agreement under which the Company has advanced or loaned any amount to the future disposition any of its directors, officers or acquisition of any business enterprise or any interest in any business enterpriseemployees;
(xin) all Contracts between or among (A) any agreement under which the Company has advanced or loaned any of its Subsidiaries, on the one hand, and (B) amount to any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other handPerson;
(xiio) Contracts pertaining to the issuance of debt or equity of any agreement that requires the Company to purchase its total requirements of any product or any of its Subsidiariesservice from a third party or that contains “take or pay” provisions;
(xiiip) Contracts which are any agreement with any Company Stockholder or their Affiliates;
(Aq) outside any agreement that relates to the ordinary course of business for the purchase, acquisition, sale acquisition or disposition of any business division or material assets or properties or (B) for the grant to any Person whether by merger, sale of any option or preferential rights to purchase any stock, sale of assets or propertiesotherwise);
(xivr) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable agreement that relates to the Company compromise or settlement of any of its Subsidiaries;
(xv) all Contracts under which the Company litigation or any of its Subsidiaries agrees to indemnify any Personarbitration or other proceeding; and
(xvis) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.
or that is otherwise material to the Company or the Business or the Company’s condition (financial or otherwise) or results of operations. The Company has made available to Parent a correct and complete copy of each such written agreement as amended to date and a written summary setting forth the material terms and conditions of each such oral agreement. With respect to each such agreement: (i) Each Company Contract the agreement is a legal, valid, binding and binding, enforceable against obligation of the Company or the party to such Company Contract which is a Subsidiary of the Companyand, as the case may be, and to the Knowledge of the Company as of the date hereofCompany, against each other party thereto, and is in full force and effecteffect in accordance with its terms in all material respects, and subject in each case to the Enforceability Limitations; (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereofCompany, any other party, party thereto is in material breach or default, in any material respect, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or accelerationacceleration under the agreement; and (iii) or loss of any benefits under any Company Contract.
(c) The Company no party has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or repudiated in writing any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 2 contracts
Sources: Merger Agreement (Globus Medical Inc), Merger Agreement
Contracts. (a) Section 4.15(a4(I)(p) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms material contracts and other agreements to which the Company or any of its Subsidiaries Target is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,0005000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year year, and will result in a material loss to the Target, or involve consideration in excess of $100,0005000;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $10,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any agreement with Target and any Affiliate, and its or their officers, directors, employees, consultants or agents (other than Target);
(vii) all partnership any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or joint venture Contractsother plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearany collective bargaining agreement;
(ix) all Contracts relating to licenses any agreement for the employment of Intellectual Property (whether the Company any individual on a full-time, part-time, consulting, or any other basis providing annual compensation in excess of its Subsidiaries is the licensor $50,000 or licensee thereunder) material to the business of the Companyproviding severance benefits;
(x) all Contracts relating any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the future disposition or acquisition Ordinary Course of any business enterprise or any interest in any business enterpriseBusiness;
(xi) all Contracts between any agreement under which the consequences of a default or among (A) the Company or any of its Subsidiaries, termination could have a material adverse effect on the one handbusiness, and (B) any Stockholder (or Holder)financial condition, such Stockholder’s Affiliate (or Holder’s Affiliate)operations, results of operations, or any Related Party (other than future prospects of the Company), on the other handTarget;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.5000; or
(ixiii) Each Company Contract to the extent not otherwise disclosed, all agreements currently in place with any of Target’s customers, vendors, employees or contractors. The Target has provided access to the Buyer of a correct and complete copy of each written agreement listed in §4(I)(p) of the Disclosure Schedule (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in §4(I)(p) of the Disclosure Schedule. With respect to each such agreement: (A) the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable, and (ii) neither in full force and effect on identical terms following the Company nor any of its Subsidiaries nor, to the Knowledge consummation of the Company as of the date hereof, any other party, transactions contemplated hereby; (C) no party is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (D) or loss of no party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 2 contracts
Sources: Stock for Stock Exchange Agreement (Vincera, Inc.), Stock for Stock Exchange Agreement (Vincera, Inc.)
Contracts. (a) Section 4.15(a) of the Disclosure Schedule sets forth Sellers have delivered to Buyer a complete and accurate list of copy of, each Contract of the following types or having the following terms to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):Applicable Contract:
(i) all Contracts providing for Involving the employmentperformance of services, retentiondelivery of goods or materials, bonus, severance or other service relationship with any current payments by one or former officer, director, employee, consultant more Acquired Companies of an amount or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder value in excess of $50,0005,000;
(ii) all material Contracts (other than employment contracts) with any current Involving the performance of services, delivery of goods or former officermaterials, director, stockholder, employee, consultant, agent or other representative payments to one or more Acquired Companies of the Company an amount or any value in excess of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;$5,000
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed That was not entered into in the Ordinary Course of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000Business;
(iv) all leaseWith respect to Intellectual Property Assets, subleaseincluding Contracts with current or former employees, rentalconsultants, or contractors regarding the ownership, use, protection, or nondisclosure of any of the Intellectual Property Assets;
(v) With any labor union or other employee representative of a group of employees relating to wages, hours, or other conditions of employment;
(vi) Involving any joint venture, partnership, or limited liability company agreement involving a sharing of profits, losses, costs, Taxes, or other liabilities by any Acquired Company with any other Person;
(vii) Containing covenants that in any way purport to restrict the right or freedom of any Acquired Company or any other Person for the benefit of any Acquired Company to (A) engage in any business activity, (B) engage in any line of business or compete with any Person, or (C) solicit any Person to enter into a business or employment relationship, or enter into such a relationship with any Person;
(viii) Providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(ix) Containing an effective power of attorney granted by any Acquired Company;
(x) Containing or providing for an express undertaking by any Acquired Company to be responsible for consequential, special, or liquidated damages or penalties or to indemnify any other party;
(xi) For capital expenditures in excess of $5,000
(xii) Involving the settlement, release, compromise, or waiver of any material rights, claims, obligations, duties, or liabilities;
(xiii) Relating to any loan, advance, extension of credit or other indebtedness of any Acquired Company in excess of $5,000
(xiv) Relating to the employment of any employee of any Acquired Company;
(xv) Under which any Acquired Company has loaned to, or made an investment in, or guaranteed the obligations of, any Person in excess of $5,000
(xvi) Relating to any bond or letter of credit;
(xvii) Containing any obligation of confidentiality or nondisclosure between any Acquired Company and any other Person for the benefit of any Acquired Company or such other Person;
(xviii) License, sublicense, option or other agreement relating in whole or in part to the Intellectual Property Assets (including any license or other Contracts agreement under which the Company or any of its Subsidiaries Acquired Company is a lessor licensee or lessee licensor of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) monthsIntellectual Property);
(vxix) all Contracts containing any covenant Lease, sublease or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete similar Contract with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party person (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiiia Subsidiary) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or a Subsidiary is a lessor or sublessor of, or makes available for use to any person (other than the Company or a Subsidiary) any assets of its Subsidiaries agrees the Acquired Company;
(xx) providing for indemnification of any person with respect to indemnify liabilities relating to any Personcurrent or former business of the Company, a Subsidiary or any predecessor person;
(xxi) which is a confidentiality agreement;
(xxii) which is a currency exchange, interest rate exchange, commodity exchange or similar Contract;
(xxiii) which has an aggregate future liability to any person (other than the Company or a Subsidiary) in excess of $10,000 and is not terminable by the Company or a Subsidiary by notice of not more than 60 days; and
(xvixxiv) Constituting an amendment, supplement, or modification (whether oral or written) in respect of any other Contract which involves consideration in excess of $100,000 per yearthe foregoing.
(ixxv) Each Company Applicable Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and is valid and enforceable in accordance with its terms;
(iixxvi) neither The completion or performance of each Applicable Contract will not result in an adverse consequence to any Acquired Company.
(xxvii) Each Acquired Company has been in compliance with each Applicable Contract since the Company nor effective date of such Applicable Contract;
(xxviii) Each other Person that has any obligation or liability under any Applicable Contract has been in compliance with such Applicable Contract since the effective date of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and no such Applicable Contract;
(xxix) No event has occurred which could constitute or circumstance exists that (with or without notice or lapse of time or bothtime) could result in a material breach or default (Breach of, or give rise any Acquired Company or other Person the right to declare a default or exercise any right remedy under, or accelerate the maturity or performance of terminationor payment under, modificationor cancel, cancellation terminate, or accelerationmodify, any Applicable Contract;
(xxx) No event has occurred or loss circumstance exists under or by virtue of any benefits under Applicable Contract that (with or without notice or lapse of time) would cause the creation of any Encumbrance affecting any assets owned or used by any Acquired Company; and
(xxxi) No Acquired Company has given to, or received from, any other Person any notice or other communication (whether oral or written) regarding any actual, alleged, or potential Breach of any Applicable Contract.
(b) There is no renegotiation of, attempt to renegotiate, or outstanding rights to renegotiate any Applicable Contract with any Person, and no Person has made written demand for such renegotiation.
(c) The Each Applicable Contract relating to the sale, design, manufacture, or provision of products or services by an Acquired Company has delivered to Parent complete been entered into in the Ordinary Course of Business and accurate copies of each Company Contract through without the date hereof and there has been no material modification, waiver or termination commission of any Company Contract act alone or in concert with any other Person, or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modificationconsideration having been paid or promised, waiver or termination in violation of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this AgreementLegal Requirement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 2 contracts
Sources: Share Exchange and Purchase Agreement (THC Therapeutics, Inc.), Share Exchange and Purchase Agreement (THC Therapeutics, Inc.)
Contracts. (a) Section 4.15(a4(p) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements to which the Company or any of its Subsidiaries Target is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00050,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) 1 year and or involve consideration in excess of $100,00050,000;
(viiiii) all any agreement concerning a partnership or joint venture Contractsthat is currently in force;
(viiiiv) all Contracts any agreement (or purchase orders relating to capital expenditures involving total payments by the Company and group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $50,000 or under which it has imposed a Lien on any of its Subsidiaries of more than $100,000 per yearassets, tangible or intangible;
(ixv) all Contracts relating to licenses of Intellectual Property (whether any material agreement that restricts the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business ability of the CompanyTargets to freely engage or compete in any line of business anywhere in the world;
(xvi) all Contracts relating to the future disposition or acquisition of any business enterprise or material agreement between any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its SubsidiariesTarget, on the one hand, and (B) any Stockholder (Seller or Holder), such Stockholder’s an Affiliate (or Holder’s Affiliate), or any Related Party of Seller (other than the CompanyTargets), on the other hand, other than any Employee Benefit Plan;
(vii) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the benefit of its current or former directors, officers, and employees with outstanding obligations in place;
(viii) any collective bargaining agreement with a labor organization relating to employees of the Targets;
(ix) any agreement for the employment of any individual on a full-time or part-time basis or, consulting of an individual, or other basis providing annual compensation in excess of $150,000 or providing material severance benefits;
(x) any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees (other than the advancement of expenses to employees and other service providers in the Ordinary Course of Business);
(xi) any agreement under which the consequences of a default or termination could have a Material Adverse Effect;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiariesagreement under which it has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(xiii) Contracts any settlement, conciliation or similar agreement with any Governmental Authority or which are (A) outside will involve payment after the ordinary course execution date of business for the purchase, acquisition, sale or disposition this Agreement of any assets or properties or (B) for the grant to any Person consideration in excess of any option or preferential rights to purchase any assets or properties$50,000 ;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries agreement under which any amount is Target has advanced or may become payable loaned any other Person amounts in the aggregate exceeding $50,000 (other than the advancement of expenses to employees and other service providers in the Company or any Ordinary Course of its Subsidiaries;Business); or
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.
50,000. Sellers has delivered to Buyer a correct and complete copy of each written agreement (ias amended to date) Each Company Contract listed in Section 4(p) of the Disclosure Schedule and a written summary setting forth the material terms and conditions of each oral agreement referred to in Section 4(p) of the Disclosure Schedule. With respect to each such agreement: (A) the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and effect in all material respects; (iiB) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, no Target is in material breach or default, and to the Knowledge of Sellers, no other party is in material breach or default, and, to the Knowledge of Sellers, no event has occurred which could constitute (that with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (C) or loss to the Knowledge of any benefits under any Company Contract.
(c) The Company Sellers, no party has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or repudiated any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modificationagreement, waiver or termination except in each of any Company Contract. Except clauses (B) and (C) as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as would not have a result of the consummation of the transactions contemplated in this AgreementMaterial Adverse Effect.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 2 contracts
Sources: Securities Purchase and Exchange Agreement (TerrAscend Corp.), Securities Purchase and Exchange Agreement
Contracts. (a) Except as set forth in Section 4.15(a3.09(a) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of the following types or having the following terms to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound Seller Letter, as of the date hereof (collectivelyof this Agreement, neither a Transferred Entity nor the “Company Contracts”):Business is a party to or bound by any:
(i) all Contracts providing for the employmentemployment agreement of any individual on a full-time, retentionpart-time, bonus, severance consulting or other service relationship with any current or former officer, director, employee, consultant or other person requiring basis providing annual compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000100,000 or providing material severance, retention or change of control benefits;
(ii) collective bargaining agreement or other contract with any labor organization, union or association, other than any mandatory national collective bargaining agreement or any other collective agreement with an employees’ representative body such as a works council or any company practice or any commitment given to all material Contracts or a substantial part of employees of a Transferred Entity;
(iii) Contract (A) with or for the benefit of the Seller or one of its affiliates (other than employment contractsa Transferred Entity) or (B) with any current or former officer, director, stockholder, employee, consultant, agent officer or other representative employee of a Transferred Entity or any affiliate of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is Seller (other than a controlling person;
(iiiTransferred Entity) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000employment agreement);
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is Contract involving payment by a lessor or lessee of any real property Transferred Entity or the guarantee Business of more than $250,000;
(v) Contract involving the obligation of a Transferred Entity to deliver products or services for payment of more than $250,000;
(vi) commodity agreement, interest rate agreement or currency agreement;
(vii) Contract with respect to any such leasejoint venture, sublease, rental partnership or other Contracts similar arrangement;
(viii) Contract for the lease of personal property to or from any person providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) monthsannum;
(vix) all Contracts containing Contract under which a Transferred Entity has created, incurred, assumed or guaranteed any covenant Indebtedness or provision limiting the freedom or ability of the Company or under which it has imposed a Lien on any of its Subsidiaries to engage in any line of businessassets, engage in business in any geographical area tangible or compete with any intangible, other Person or requiring exclusive dealings by the Company or any of its Subsidiariesthan a Permitted Lien;
(vix) (A) all Contracts for Contract under which a Transferred Entity has advanced or loaned any other person amounts currently outstanding in the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of aggregate exceeding $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) Contract containing an obligation of a Transferred Entity to indemnify any other person outside the Company or any ordinary course of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other handbusiness;
(xii) Contracts pertaining to the issuance for acquisitions of debt capital stock or equity assets of the Company another person (whether by merger, stock or any of its Subsidiariesasset purchase or otherwise);
(xiii) Contracts which are (A) outside regarding dispositions of any material portion of the Business or any assets having a value greater than $100,000 other than in the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or propertiesbusiness;
(xiv) all engagement letters with clients Contracts involving payment of the Company more than $50,000 entered into since May 1, 2005 involving any resolution or settlement of any of its Subsidiaries under which any amount is actual or may become payable to the Company threatened litigation, arbitration, claim or any of its Subsidiaries;other dispute; and
(xv) all Contracts under which the Company relating to any Inbound Licensed Intellectual Property or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per yearOutbound Licensed Intellectual Property.
(b) Neither a Transferred Entity nor the Business is a party to or bound by Contract that, following the Closing, (i) Each Company Contract is legal, valid, binding and enforceable against restricts the Company or the party to such Company Contract which is a Subsidiary ability of the CompanyBusiness to compete in any business or with any person in any geographic area, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither provides for exclusivity or any similar requirement, (iii) requires the Company nor Business to grant “most favored nation” pricing or terms or (iv) restricts the ability of the Business to solicit or hire any person;
(c) Each Contract required to be set forth in Section 3.09(a) of the Seller Letter (the “Material Contracts”) is a legal, valid and binding obligation of a Transferred Entity, enforceable against such Transferred Entity in accordance with its Subsidiaries terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law. No Transferred Entity that is party to a Material Contract nor, to the Knowledge knowledge of the Company as of the date hereofSeller, any other party, party to such Material Contract is in material breach or default, and no event default under such Material Contract. No counterparty to a Material Contract is an affiliate of the Seller or any Transferred Entity. Neither the Seller nor any Transferred Entity has occurred which could constitute (with or without received written notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Material Contract or and to the knowledge of the Seller no other party to any material provision thereto through the date hereofMaterial Contract has orally threatened to terminate any Material Contract. The Company is not contemplating Seller has made available to the Purchaser a complete and correct copy of each Material Contract, in each case as of the date hereof any modificationamended, waiver supplemented or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementotherwise modified.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 2 contracts
Sources: Purchase Agreement (Spectrum Brands, Inc.), Purchase Agreement (Salton Inc)
Contracts. (a) Section 4.15(a) 4.15 of the Company Disclosure Schedule sets forth Letter contains a complete true and accurate list correct list, by reference to the applicable subsection of each Contract this Section 4.15, of the following types or having the following terms Contracts to which the any Company or any of its Subsidiaries Entity is a party or by which the any Company Entity is bound or any of its Subsidiaries their respective assets or its or their properties or assets is or may be bound as of the date hereof (collectively, the contracts required to be set forth in Section 4.15 of the Company Disclosure Letter, the “Company Material Contracts”):
(ia) any Contracts required to be filed as an exhibit to the Company’s Annual Report on Form 10-K for the year ended December 31, 2012, pursuant to Item 601(b)(2), (4), (9) or (10) of Regulation S-K promulgated by the SEC;
(b) all selling, distribution, dealer, product or marketing Contracts providing for the employmentor similar commission-based Contracts with third parties, retention, bonus, severance or other service relationship all Contracts with Financial Advisors and all Advisory Contracts,
(c) any Contracts with any current current, or former containing ongoing obligations to or rights in favor of any former, officer, director, employeeshareholder or Affiliate of any Company Entity;
(d) any Contracts with any labor or trade union or association or works council representing any employee of any Company Entity;
(e) any Contracts for correspondent securities clearing, consultant payment and settlement activities;
(f) any Contracts for joint ventures or other person requiring compensation by the Company similar Contracts involving a sharing of profits or expenses, strategic alliances or partnerships;
(the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(ag) of the Disclosure Schedule), any Contracts relating to the extent there are continuing obligations acquisition (by merger, purchase of stock or assets or otherwise) by any Company Entity of any operating business or material assets or the capital stock of any other Person;
(h) any Contracts relating to the incurrence, assumption or guarantee of any Indebtedness of the Company Entities or its Subsidiaries thereunder imposing a Lien on any of their respective assets;
(i) any settlement or conciliation agreement with any Person (including any Governmental Authority) entered into within the 36 months preceding the date of this Agreement;
(j) any Contract or series of related Contracts under which any Company Entity has made loans to any other Person, including loans to Financial Advisors;
(k) any Contracts providing for severance, retention, change in control or other similar payments;
(l) any Contracts for the employment of any individual on a full-time, part-time or consulting or other basis providing annual base and bonus compensation in excess of $50,00075,000;
(iim) all material any outstanding Contracts (of guaranty, surety or indemnification, direct or indirect, by any Company Entity, other than employment contracts) third party Contracts entered into in the ordinary course of business consistent with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling personpast practice that contain ordinary course indemnification provisions;
(iiin) any Contracts that contain covenants (Aincluding exclusive rights, covenants not to compete and non-solicit agreements) all instruments relating to indebtedness for borrowed moneythat restrain, restrict, limit or impede the ability of any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted LiensCompany Entity, or that, following the consummation of the transactions contemplated hereby, would restrain, restrict, limit or impede the ability of the Surviving Entity or its Affiliates, to (Bi) compete in any Contract of guarantee of credit in favor of business or with any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiariesgeographic area, (ii) for the sale by the Company sell, supply or distribute any of its Subsidiaries of materials, supplies, inventory service or equipment product (including, without limitation, computer hardware and Softwareincluding any “most favored customer” or similar clauses), or (iii) acquire any property (tangible or intangible) from any Person;
(o) All Real Property Leases and all leases, subleases or other rental agreements under which any Company Entity is a party that call for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration annual lease payments in excess of $100,00075,000 individually or are otherwise material to the operations of its business;
(viip) all partnership any Contracts providing for liquidated damages or joint venture Contractssimilar penalties in the event of a breach that would reasonably be expected to result in a material liability of any Company Entity (or, following the Closing, of the Surviving Entity);
(viiiq) all any Contracts which individually provide for payments to or purchase orders relating to capital expenditures involving total payments by the from any Company and its Subsidiaries Entity of more than $100,000 per year;75,000 or more, including over any 12-month period; and
(ixr) all any Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) that are otherwise material to the business any Company Entity. True and complete copies of the Company;
all Material Contracts (x) all Contracts relating to the future disposition or acquisition and true and correct summaries of any business enterprise or any interest Material Contracts agreed to orally) have been delivered to Parent. Except as set forth in any business enterprise;
(xiSection 4.15(s) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Disclosure Letter, all Material Contracts which are (A) outside were entered into in the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients business. Each of the Material Contracts is presently in full force and effect in all material respects in accordance with its terms and there has not been any material breach of, or material default under, any such Contract by any Company or any of its Subsidiaries under which any amount is or may become payable Entity, or, to the Company or Company’s knowledge, by any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
(i) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effectno condition exists that, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) , would constitute a material breach of or material default (or give rise under any such Contract by any Company Entity or, to the Company’s knowledge, by any other party thereto. No other party to any right of terminationthe Material Contracts has made or asserted in writing, modificationor, cancellation to the Company’s knowledge, has, any defense, setoff or acceleration) counterclaim under any such Contract or loss has exercised any option to cancel or terminate, shorten the term of or fail to renew or extend the term of any benefits under any Company such Contract.
(c) The Company has delivered to Parent complete , and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business none of the Company or Entities have received any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) written notices to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement)that effect.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Summit Financial Services Group Inc), Merger Agreement (Summit Financial Services Group Inc)
Contracts. (a) Section 4.15(a) 4.16 of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements to which the Company or any of its Subsidiaries the Subsidiary is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(ia) all Contracts providing any agreement (or group of related agreements) for the employment, retention, bonus, severance lease of personal property to or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of from any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 5,000 per annum and a term of at least twelve (12) monthsannum;
(vb) all Contracts containing any covenant agreement (or provision limiting the freedom or ability group of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(virelated agreements) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and year, result in a loss to the Company or the Subsidiary, or involve consideration in excess of $100,00010,000;
(viic) all any agreement concerning a partnership or joint venture Contractsventure;
(viiid) all Contracts any agreement (or purchase orders relating to capital expenditures involving total payments by the Company and group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $10,000 or under which it has imposed a Security Interest on any of its Subsidiaries of more than $100,000 per yearassets, tangible or intangible;
(ixe) all Contracts relating to licenses of Intellectual Property (whether the Company any agreement concerning confidentiality or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Companynoncompetition;
(xf) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or agreement with any of its Subsidiaries, on the one hand, Sellers and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party their Affiliates (other than the CompanyCompany and the Subsidiary), on the other hand;
(xiig) Contracts pertaining any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of its current or former directors, officers, and employees;
(h) any collective bargaining agreement;
(i) any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis providing annual compensation in excess of $40,000 or providing severance benefits;
(j) any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the issuance Ordinary Course of debt Business;
(k) any agreement under which the consequences of a default or equity termination could have a material adverse effect on the business, financial condition, operations, results of operations, or future prospects of the Company or any of its Subsidiaries;the Subsidiary; or
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvil) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year10,000.
(i) Each Company Contract the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and ; (ii) neither the Company nor any of its Subsidiaries noragreement will continue to be legal, to valid, binding, enforceable, and in full force and effect on identical terms following the Knowledge consummation of the Company as of the date hereof, any other party, transactions contemplated hereby; (iii) no party is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (iv) or loss of no party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Microtel International Inc), Stock Purchase Agreement (Microtel International Inc)
Contracts. Schedule 2.3.13 of the Disclosure Schedules contains a listing of the following undischarged written (or, to the knowledge of Seller, oral) contracts, agreements, leases and other instruments to which a Company Member is a party:
(a) Section 4.15(a) agreements for the employment for any period of the Disclosure Schedule sets forth a complete and accurate list of each Contract of the following types time whatsoever, or having the following terms in regard to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):
(i) all Contracts providing for the employment, retentionor restricting the employment, bonusincluding any termination, severance or other service relationship with change in control agreements of any current or former officer, director, employee, consultant or other person requiring compensation by employee of any Company Member who earns more than $75,000 per year;
(b) consulting agreements where the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries payment thereunder is in excess of $50,000100,000 per year and which have an unexpired term in excess of one year;
(iic) all material Contracts collective bargaining agreements;
(other than employment contractsd) with any current contracts or former officerarrangements providing for bonuses, directoroptions, stockholderdeferred compensation or stock appreciation rights;
(e) leases or subleases, employeeeither as lessee or sublessee, consultantlessor or sublessor, agent of personal property, where the lease or other representative sublease provides for an annual rent in excess of the Company or any $100,000 and has an unexpired term in excess of its Subsidiaries or with an entity in which one year;
(f) service agreements affecting any of the foregoing is a controlling personassets of any Company Member where the charges are reasonably expected to be in excess of $100,000 and which has an unexpired term as of the Closing Date in excess of one year;
(iiig) (A) all instruments relating to indebtedness loan agreements, promissory notes, indentures, bonds, security agreements, guarantees or obligations for borrowed money, any note, bond, deed of trust, mortgage, indenture money or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit instruments involving Indebtedness in favor of any Person or entity an amount in excess of $100,000;
(ivh) all leaseany partnership, sublease, rental, license joint venture or other Contracts under which the Company similar agreement or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) monthsarrangement;
(vi) all Contracts any agreement containing any covenant or provision limiting the freedom prohibiting any Company Member from engaging in any line or ability type of the business (except for such agreements which shall not apply to any Company Member upon Closing) or competing with any person;
(j) any agreement under which it has advanced or loaned any amount to any of its Subsidiaries to engage in any line of businessdirectors, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by officers and employees outside the Company or any ordinary course of its Subsidiariesbusiness;
(vik) any agreement under which a sale of any of the Real Estate that is material to the operation of the Business is pending;
(Al) all Contracts for any indemnification agreement by any Company Member running to any person that involves, individually or in the purchase aggregate, a contingent liability of materials, inventory, supplies a Company Member of $100,000 or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisionsmore, other than Contracts that are terminable within ninety (90) days without premium in connection with customer contracts, agreements entered into in the ordinary course of business or penalty with respect to the Company directors or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business executive officers of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (Bm) any Stockholder (long-term or Holder)continuing agreements or arrangements with respect to discounts or allowances or extended payment terms that provide for the receipt or expenditure following the Closing Date of more than $500,000, such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside purchase orders and sales orders in the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;business; or
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvin) any other Contract which involves consideration in excess agreements that provide for the receipt or expenditure following the Closing Date of more than $100,000 per year.
(i) Each Company Contract is legal500,000, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement)purchase orders and sales orders in the ordinary course of business.
Appears in 1 contract
Sources: Stock Purchase Agreement (Royster-Clark Nitrogen Realty LLC)
Contracts. (a) Section 4.15(a4.10(a) of the Disclosure Schedule of Exceptions sets forth a complete and accurate list of each Contract of the following types all material written and oral contracts or having the following terms to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound agreements existing as of the date hereof to which HTR is a party (collectively, collectively the “Company "Contracts”" or individually a "Contract"):
(i) all Contracts which involves the lease of personal property from or to third parties providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00025,000 per annum;
(ii) all material Contracts under which it has created, incurred, assumed or guaranteed (other or may create, incur, assume or guarantee) indebtedness for borrowed money (including capitalized lease obligations) involving more than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person$25,000;
(iii) which is in the nature of an employment, consulting or severance agreement or collective bargaining agreement (Ax) all instruments relating to indebtedness for borrowed money, any note, bond, deed involving the annual payment of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other more than Permitted Liens, $5,000 or (By) any Contract not entered into in the ordinary course of guarantee of credit in favor of any Person or entity in excess of $100,000business;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or is with any of its Subsidiaries is a lessor the Exchanging Stockholders or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) monthstheir Affiliates;
(v) all Contracts containing any covenant which concerns confidentiality, nondisclosure or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiariesnoncompetition;
(vi) (A) all Contracts which is a profit sharing, stock option, stock appreciation, deferred compensation, severance or other plan or arrangement for the benefit of its current or former directors, officers and employees;
(vii) which by its terms is not terminable without liability and involves the annual payment or receipt of $5,000 or more;
(viii) which the consequences of a default or termination of such Contract could have a Material Adverse Effect;
(ix) which is in the nature of a partnership, joint venture strategic alliance, preferred vendor, collaborative arrangement or relationship or distribution agreement;
(x) which involves the purchase or sale of raw materials, inventorycommodities, supplies supplies, products or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will shall extend over a period of more than one (1) year and involve consideration year, result in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating financial loss to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate)HTR, or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year5,000; or
(xi) which is outside of the ordinary course of business or contains any provision requiring HTR to indemnify any other party thereto.
(ib) Each Company HTR has made available to UOL a correct and complete copy of each written Contract is and a written summary setting forth the terms and conditions of each oral Contract except for oral Contracts relating to obligations of $5,000 or less annually or employment contracts entered into the ordinary course of business. All of the Contracts are legal, valid, binding and enforceable in accordance with their respective terms against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, HTR and to the Knowledge of the Company as of the date hereof, against each any other party parties thereto, and is will be in full force and effect, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth effect on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of substantially similar terms following the consummation of the transactions contemplated in this Agreement.
. There is not under any Contract: (di) There are no non-competition any existing default, breach or non-solicitation agreements violation by HTR or, to the knowledge of HTR, by any other party thereto; (ii) an event which, after notice or lapse of time or both, would constitute a default or breach by HTR or, to the knowledge of HTR, by any similar agreements other party, or arrangements that could restrict permit termination, modification or hinder acceleration, under the operations Contract; or conduct (iii) to the knowledge of HTR, any repudiation of any provision of any Contract which would have a Material Adverse Effect on the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is HTR when taken as a party or may be subject or bound (other than this Agreement or pursuant to this Agreement)whole.
Appears in 1 contract
Contracts. (a) Section 4.15(a4(p) of the Disclosure Schedule sets forth a complete lists the following contracts and accurate list of each Contract other agreements to which any of the following types or having the following terms to which the Company or any of Target and its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00010,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year year, result in a material loss to any of the Target and its Subsidiaries, or involve consideration in excess of $100,00010,000;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $10,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or non-competition;
(vi) any agreement with any of the Sellers and their Affiliates (other than the Target and its Subsidiaries);
(vii) all partnership any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or joint venture Contractsother material plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearany collective bargaining agreement;
(ix) all Contracts relating to licenses any agreement for the employment of Intellectual Property (whether the Company any individual on a full-time, part-time, consulting, or any other basis providing annual compensation in excess of its Subsidiaries is the licensor $20,000 or licensee thereunder) material to the business of the Companyproviding severance benefits;
(x) all Contracts relating any agreement under which it has advanced or loaned any amount to the future disposition or acquisition any of any business enterprise or any interest in any business enterpriseits directors, officers, and employees;
(xi) all Contracts between any agreement under which the consequences of a default or among (A) termination could have a material adverse effect on the Company business, financial condition, operations, results of operations, or future prospects of any of the Target and its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;; or
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.
10,000. A correct and complete copy of each written agreement listed in the Disclosure Schedule (ias amended to date) Each Company Contract is attached to Schedule 4(p). With respect to each such agreement: (A) the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable, and (ii) neither in full force and effect on identical terms following the Company nor any of its Subsidiaries nor, to the Knowledge consummation of the Company as of the date hereof, any other party, transactions contemplated hereby; (C) no party is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (D) or loss of no party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. With respect to each of the contracts listed in Section 4(m) of the Disclosure Schedule: (aA) the agreement is legal, valid, binding, enforceable, and in full force and effect as to the Company; (B) neither the Company nor, to the Knowledge of the Seller Entities, any other party is in material breach or default, and to the Knowledge of the Seller Entities, no event has occurred which with notice or lapse of time would constitute a material breach or default, or permit termination, modification, or acceleration, under the agreement; and (C) to the Knowledge of the Seller Entities, no party has repudiated any material provision of the agreement. Section 4.15(a4(m) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having contracts and other agreements in effect on the following terms date hereof to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):
party: (i) all Contracts providing any agreement (or group of related agreements) for the employment, retention, bonus, severance lease of real or other service relationship with any current personal property to or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of from any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 10,000 per annum and a term annum; (ii) any agreement (or group of at least twelve (12related agreements) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and or involve consideration in excess of $100,000;
10,000; (vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (Biii) any Stockholder agreement (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xiigroup of related agreements) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration capitalized lease obligation, in excess of $100,000 per year.
10,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible, other than the Bank Guarantee and the Security Agreement, which will be released at Closing; (iiv) Each Company Contract is legal, valid, binding and enforceable against the Company any written agreement concerning confidentiality or the party to such Company Contract which is noncompetition; (v) any agreement with a Subsidiary Seller Entity or another Affiliate of the Company; (vi) any profit sharing, as stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the case may bebenefit of its current or former directors, officers, and employees; (vii) any collective bargaining agreement (each a “Collective Bargaining Agreement” and collectively the “Collective Bargaining Agreements”); (viii) any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis providing annual compensation in excess of $10,000 or providing severance benefits; (ix) any agreement under which it has advanced or loaned any amount to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries nordirectors, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or defaultofficers, and no event has occurred employees outside the Ordinary Course of Business; (x) any agreement under which could constitute (with or without notice or lapse the consequences of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract would reasonably be expected to have a Material Adverse Effect; or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).15
Appears in 1 contract
Sources: Securities Purchase Agreement
Contracts. (aSchedule 3(p) Section 4.15(a) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements to which the Company or any of its Subsidiaries Target is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00025,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve or which specifies consideration in excess of $100,00010,000;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $10,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(v) any material agreement concerning confidentiality or noncompetition;
(vi) any material agreement between Target and its Affiliates;
(vii) all partnership any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or joint venture Contractsother material plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearany collective bargaining agreement;
(ix) all Contracts relating to licenses any agreement for the employment of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Companyindividual on a full-time basis;
(x) all Contracts relating any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the future disposition or acquisition Ordinary Course of any business enterprise or any interest in any business enterpriseBusiness;
(xi) all Contracts between any agreement under which the consequences of a default or among (A) the Company or any of its Subsidiaries, termination would have a material adverse effect on the one handbusiness, and (B) any Stockholder (financial condition, operations or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;results of operations of Target; or
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract agreement (or group of related agreements) which involves specifies consideration in excess of $100,000 per year.
10,000. Target has delivered to Parent or its counsel a complete copy of each written agreement listed in Schedule 3(p) (ias amended to date) Each Company Contract and a written summary setting forth the material terms and conditions of each oral agreement referred to in Schedule 3(p). With respect to each such agreement: (A) the agreement is legal, valid, valid and binding on Target and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effecteffect in all material respects; (B) Target's Knowledge, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, no party is in material breach or default, and and, no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (C) or loss no party has provided Target with notice of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies repudiation of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Merger Agreement (Barpoint Com Inc)
Contracts. (a) Section 4.15(a) 2.17 of the Company Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements (each, a “Material Contract”) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”if applicable):
(ia) all Contracts providing any agreement (or group of related agreements) for the employment, retention, bonus, severance lease of personal property to or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of from any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 1,000 per annum and a term of at least twelve (12) monthsannum;
(vb) all Contracts containing any covenant agreement (or provision limiting the freedom or ability group of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(virelated agreements) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) 1 year and or involve consideration in excess of $100,0001,000;
(viic) all any agreement concerning a partnership or joint venture Contractsventure;
(viiid) all Contracts any agreement (or purchase orders relating to capital expenditures involving total payments by group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $1,000 or under which it has imposed a Lien on any of its assets, tangible or intangible;
(e) any material agreement concerning confidentiality or non-competition;
(f) any material agreement with any of the Company and their Affiliates (other than the Company and its Subsidiaries of more than $100,000 per yearSubsidiaries);
(ixg) all Contracts relating any profit sharing, equity option, equity purchase, equity appreciation, deferred compensation, severance, or other material plan or arrangement for the benefit of its current or former members, directors, officers, and employees;
(h) any collective bargaining agreement;
(i) any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis providing annual compensation in excess of $1,000 or providing material severance benefits;
(j) any agreement under which it has advanced or loaned any amount to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is members, directors, officers, and employees outside the licensor or licensee thereunder) material to the business Ordinary Course of the CompanyBusiness;
(xk) all Contracts relating to any agreement under which the future disposition consequences of a default or acquisition of any business enterprise or any interest in any business enterprisetermination could have a Company Material Adverse Effect;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (Bl) any Stockholder agreement under which it has granted any Person any registration rights (or Holderincluding, without limitation, demand and piggyback registration rights), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xiim) Contracts pertaining to any settlement, conciliation or similar agreement with any Governmental Body or which will involve payment after the issuance execution date of debt or equity this Agreement of the Company or any consideration in excess of its Subsidiaries$1,000;
(xiiin) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts agreement under which the Company or any of its Subsidiaries agrees to indemnify has advanced or loaned any Personother Person amounts in the aggregate exceeding $1,000; andor
(xvio) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.
1,000. The Company have delivered to Parent (ias applicable) Each a correct and complete copy of each written agreement listed in Section 2.17 of the Company Contract Disclosure Schedule (as amended to date) and a written summary setting forth the material terms and conditions of each oral agreement referred to in Section 2.17 of the Company Disclosure Schedule. With respect to each such agreement: (A) the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and effect in all material respects; (iiB) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, no party is in material breach or default, and no event has occurred which could constitute (that with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (C) or loss of any benefits under any Company Contract.
(c) The Company no party has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or repudiated any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Merger Agreement (Bio-Matrix Scientific Group, Inc.)
Contracts. (a) Section 4.15(a4.1(p) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts providing any agreement (or group of related agreements) for the employment, retention, bonus, severance lease of personal property (including without limitation software) to or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of from any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) monthsannum;
(vii) all Contracts containing any covenant agreement (or provision limiting the freedom or ability group of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(virelated agreements) (A) all Contracts for the purchase or sale of materialssupplies, inventory, supplies products or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and year, result in a material loss to the Company or, except for Contracts made in the Ordinary Course of Business, involve consideration in excess of $100,000;
(viiiii) all any agreement concerning a partnership or joint venture Contractsor arrangement to share profits;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $100,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or non-competition;
(vi) any agreement with any of the Sellers and their Affiliates (other than the Company) or any members of their immediate families;
(vii) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearany collective bargaining agreement;
(ix) all Contracts relating any agreement under which it has advanced or loaned any amount to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is directors, officers, and employees or any members of their immediate families, excluding claims for reimbursement of expenses incurred in the licensor or licensee thereunder) material to the business Ordinary Course of the CompanyBusiness;
(x) all Contracts relating to any agreement under which the future disposition consequences of a default or acquisition of any business enterprise or any interest in any business enterprise;termination could have a Material Adverse Effect; or
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder other agreement (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than group of related agreements) which was not entered into in the Company), on Ordinary Course of the other hand;
(xii) Contracts pertaining Business. The Sellers have delivered to the issuance Buyer a correct and complete copy of debt or equity each written agreement listed in §4.1(p) of the Company or any of its Subsidiaries;
Disclosure Schedule (xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant as amended to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
(i) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may bedate), and to the Knowledge of the Company as Sellers, a written summary of the date hereofterms of all oral agreements referred to in §4.1(p) of the Disclosure Schedule. With respect to each such agreement: (A) the agreement is legal, against each other party theretovalid, binding, enforceable, and is in full force and effect, subject to the Exception; (B) subject to obtaining the consents indicated in §4.1(c) of the Disclosure Schedule, the agreement will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms immediately following the consummation of the transactions contemplated hereby except for the Exception; (iiC) neither the Company nor any of its Subsidiaries noris not in breach or default and, to the Knowledge of the Company as Sellers, no other party is in breach or default of the date hereofagreement; (D) to the Knowledge of the Sellers, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (E) or loss to the Knowledge of the Sellers, no party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies provision of each Company Contract through the date hereof and there has been no material modificationagreement. Without limiting the generality of the foregoing, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementcompliance with all covenants under all agreements with its bank and other lenders.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(a3(p) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of Letter lists the following types contracts and other agreements, whether or having the following terms not reduced to writing, to which the Company or any of its Subsidiaries Seller and/or Seller Subs is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00010,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of materialsservices, inventorysupplies, supplies products or equipment (includingother personal property, including without limitation, computer hardware all customer contracts for the provision of domain name registration and Software)maintenance, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess year, the cancellation or termination of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating which would give rise to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate)a Seller Material Adverse Effect, or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.10,000, including all agreements with merchants and banks;
(iiii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $10,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(v) any agreement imposing duties of confidentiality or noncompetition on Seller and/or Seller Subs;
(vi) any agreement involving the Seller Shareholder and its Affiliates (other than Seller and/or Seller Subs);
(vii) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis providing annual compensation in excess of $10,000 or providing severance benefits and any such agreement with any officer or director of Seller and/or Seller Subs;
(ix) any agreement under which it has advanced or loaned any amount to any of its directors, officers and employees;
(x) any agreement under which the consequences of a default or termination would have a Seller Material Adverse Effect; or
(xi) any joint marketing agreements, merchant agreements and reseller agreements; or
(xii) any other agreement (or group of related agreements) the performance of which involves consideration in excess of $10,000. Each Company Contract of Seller and Seller Subs has delivered to Buyer and Acquisition Sub a correct and complete copy of each written agreement listed in Section 3(p) of the Disclosure Letter (as amended to date). Neither Seller nor Seller Subs is party to any oral contracts that would fall within any of the criteria listed in subsection 3(p)(i) through (xii). With respect to each such agreement: (A) the agreement is legal, valid, binding binding, enforceable and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable and (ii) neither in full force and effect on identical terms following the Company nor any of its Subsidiaries nor, to the Knowledge consummation of the Company as of transactions contemplated hereby (including the date hereof, any other party, assignments and assumptions referred to in Section 2 above); (C) no party is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (D) or loss of no party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(a) 4.21 of the Disclosure Schedule sets forth contains a true and complete and accurate list of each Contract of the following types (hereinafter referred to as the "Company Contracts"):
(a) all bonds, debentures, notes, mortgages, indentures or having the following terms guarantees to which the Company is a party or by which any of its Subsidiaries properties or assets (real, personal or mixed, tangible or intangible) is bound pursuant to which any indebtedness of the Company in the aggregate principal amount in excess of $10,000 is outstanding;
(b) all leases to which the Company is a party or by which any of its properties or assets (real, personal or mixed, tangible or intangible) is bound involving an annual rental payment in excess of $10,000 individually;
(c) all loans and credit commitments to the Company which are outstanding and pursuant to which any indebtedness of the Company in the aggregate principal amount in excess of $10,000 is outstanding, together with a brief description of such commitments and the name of each financial institution granting the same;
(d) all contracts or agreements which limit or restrict in any respect the Company from engaging in any business in any jurisdiction;
(e) all agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(f) all bonuses, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(g) all employment or consulting agreements, contracts or commitments with any employee, not terminable by Company on thirty days notice without liability;
(h) all agreements or plans, including, without limitation, any stock option plans, stock appreciation right plans or stock purchase plans, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(i) all agreements of indemnification or guaranties;
(j) all agreements, contracts or commitments containing any covenant limiting the freedom of Company to engage in any line of business or compete with any person;
(k) all agreements, contracts or commitments relating to capital expenditures and involving future obligations in excess of $5,000 and not cancelable without penalty;
(l) all agreements, contracts or commitments currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(m) all joint marketing or development agreements or distribution agreements; or
(n) all existing agreements, contracts and commitments, written or oral (other than those described in the foregoing provisions of this Section 4.21) to which the Company is a party or by which the Company or any of its Subsidiaries or its or their respective properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):
(i) all Contracts providing for the employment, retention, bonus, severance involving an annual commitment or other service relationship with annual payment by any current or former officer, director, employee, consultant or other person requiring compensation party thereto of more than $10,000 individually; (ii) which cannot be terminated by the Company without penalty or further obligations on not more than 90 days' notice; or (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(aiii) of the Disclosure Schedule), which is otherwise material to the extent there Company. True and complete copies of all Company Contracts, including all amendments thereto, have been made available to Parent. The Company Contracts are continuing obligations valid and enforceable in accordance with their respective terms with respect to the Company (as applicable) and valid and enforceable in accordance with their respective terms with respect to any other party thereto, except as the enforceability may be limited by laws of general application relating to bankruptcy, insolvency, and debtor's relief and by the general principles of equity. The Company has physical possession of all equipment and other tangible physical assets which are covered by leases. There is not under any of the Company Contracts any existing breach, default or its Subsidiaries thereunder in excess event of $50,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings default by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts event that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
(i) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) both would constitute a material breach, default or event of default by the Company, nor does the Company know of, and nor has the Company received notice of, or made a claim with respect to, any breach or default (or give rise to by any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through other party thereto. To the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as knowledge of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure ScheduleCompany, no customer or supplier which paid the Company Contract is terminable or cancelable was paid by the Company more than $10,000 during calendar year 1997 or 1998 intends to terminate or materially alter its level of business with the Company as a result of the consummation of the transactions contemplated in by this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(a3.14(a) of the Seller Disclosure Schedule Letter sets forth a complete and accurate list as of each Contract the date of this Agreement of the following types contracts, agreements, commitments, arrangements or having the following terms understandings of any kind, whether written or oral, to which the Company or any of its Subsidiaries Seller is a party or by which the Company Seller or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Seller Material Contracts”):
(i) all Contracts any Real Property Lease or Third Party Lease and any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00025,000 per year;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling personTake Down Contract;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating (or group of related agreements) for the purchase, sale or license of products by Seller or for the furnishing or receipt of services by the Seller or client referrals to the extension Seller which involves a contractual value of credit or the granting of a Lien other more than Permitted Liens, or $25,000 (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000based on projections set forth under such agreement);
(iv) all leaseany agreement concerning the establishment or operation of a partnership, subleasejoint venture, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) monthslimited liability company;
(v) all Contracts containing any covenant agreement (or provision limiting the freedom group of related agreements) under which Seller has created, incurred, assumed or ability guaranteed (or may create, incur, assume or guarantee) Indebtedness in excess of the Company $5,000 (including capitalized lease obligations or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiariescapital expenditures);
(vi) any agreement for the disposition of any significant portion of the assets of Seller or the Business (other than sales of Housing Units in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory in the Ordinary Course of Business);
(vii) any currently effective contract for the employment or engagement of any executive officer, employee, or other individual on an employment, consulting, or independent contractor basis that (A) all Contracts is not terminable at will (for any lawful reason or for no reason) without penalty, severance obligation, or other liability or (B) provides for the purchase payment or acceleration of materialspayment of cash or other compensation or payment or acceleration of any other benefits under any compensation or benefit plan, inventory, supplies or equipment (including, without limitation, computer hardware and Software)program, or agreement, upon the consummation of the transactions contemplated by this Agreement;
(viii) any currently effective contract for any bonus, incentive, commission, pension, profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, change-in-control, hospitalization, insurance, or other material plan or arrangement for the provision benefit of servicesSeller’s current or former directors, involving annual payments officers, employees, or independent contractors;
(ix) any agreement that grants any exclusive marketing, distribution, Intellectual Property, or other similar rights to any third party or otherwise purports to prohibit or limit, in any material respect, the right of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company Seller or any of its Subsidiaries; and Affiliates (B) notwithstanding (A)including, all Contracts (i) in accordance with material customers the terms of the business of contracts in effect on the Company date hereof, Parent or any of its SubsidiariesAffiliates after the Effective Time) to make, sell, market, advertise or distribute any products or services or use, transfer, license, distribute or enforce any of Seller’s Intellectual Property;
(iix) for any agreement containing exclusivity, non-compete or non-solicitation provision or that otherwise purports to limit in any material respect either the sale by type of business or the Company geographic area in which Seller or any Affiliates of Seller (including, in accordance with the terms of the contracts in effect on the date hereof, Parent or any of its Subsidiaries of materials, supplies, inventory Affiliates after the date hereof) may engage in business;
(xi) any agreement that grants a third party “most favored nation” status or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company purports to require Seller or any of its Subsidiaries Affiliates (including, without limitationin accordance with the terms of the contracts in effect on the date hereof, consulting services, data processing and management, and project management services), Parent or any of its Affiliates after the Effective Time) to offer a third party the same or better price for a product or service if Seller or such Affiliate offers a lower price for the same product or service to another third party;
(xii) each agreement under which Seller has advanced or loaned any other Person outstanding amounts in the aggregate for such Person exceeding $10,000;
(xiii) each outstanding power of attorney with respect to Seller;
(xiv) each agreement that calls for performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party three months (other than the Companythose that are terminable at will or upon not more than 30 days’ notice by Seller without any liability or other obligation to Seller), on except for contracts for the other hand;
sale of Housing Units in the Ordinary Course of Business and that conform to Seller’s standard form contract (xii) Contracts pertaining as provided to Parent prior to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiariesdate hereof);
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify development agreement with any Person; andGovernmental Authority;
(xvi) any agreement related to the Real Property or other Contract real estate granting the Seller a direct or indirect right of first offer or right of first refusal or where Seller has granted such rights to a third party;
(xvii) any contract of surety, guarantee or indemnity;
(xviii) any contract requiring or related to any Business Collateral;
(xix) all contracts providing payment to or by any person or entity based upon the sales, purchases or profits, other than direct payments for goods and services;
(xx) any agreement with any contractor, subcontractor or other materialmen in connection with any work completed that remains unpaid or that has other obligations, covenants, indemnifications, representations or warranties which involves consideration in excess of $100,000 per yearremain effective, being completed, or to be completed related to the Real Property; and
(xxi) any other agreement that is material to Seller or the Business and not otherwise disclosed pursuant to this Section 3.14(a).
(ib) Seller has made available to Parent a true, correct and complete copy of each written Assigned Contract and each written Seller Material Contract (together with any and all amendments, supplements, or modifications thereto) and accurate descriptions of all material terms of all non-written Assigned Contract and each non-written Seller Material Contract.
(c) Each Company Assigned Contract is in full force and effect with respect to Seller, is legal, valid, binding valid and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may bebinding, and to the Knowledge of the Company as of the date hereofSeller, against with respect to each other party thereto, except as the enforceability of such Assigned Contract may be limited by principles of public policy and is in full force subject to the laws of general application relating to bankruptcy, insolvency and effectthe relief of debtors and rules of law governing specific performance, and (ii) neither the Company nor any of its Subsidiaries injunctive relief or other equitable remedies. Neither Seller nor, to the Knowledge of the Company as of the date hereofSeller’s Knowledge, any other party, party to any Assigned Contract is in material breach violation of or defaultin material default under any Assigned Contract, and no event has occurred which could constitute (with or without notice or lapse to Seller’s Knowledge all of time or both) a material breach or default (or give rise the covenants to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through be performed by the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating parties thereunder as of the date hereof any modification, waiver have been fully performed and no claims have been made or issued for breach or indemnifications or notice of default or termination of under any Company Assigned Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(a3(p) of the Disclosure Schedule sets forth a complete and accurate list of each Contract lists all of the following types or having the following terms material contracts and other agreements to which the Company or any of its Subsidiaries CTI is a party or by which party, including but not limited to the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):following:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00025,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and or involve consideration in excess of $100,00025,000;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $25,000 or under which it has imposed a Lien on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or non-competition;
(vi) any agreement involving any CTI Affiliates (other than CTI);
(vii) all partnership any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or joint venture Contractsother plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearany collective bargaining agreement;
(ix) all Contracts relating to licenses any agreement for the employment of Intellectual Property (whether the Company any individual on a full-time, part-time, consulting, or any other basis providing annual compensation including severance benefits in excess of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company$50,000;
(x) all Contracts relating any agreement under which it has advanced or loaned any amount to the future disposition or acquisition any of any business enterprise or any interest in any business enterpriseits directors, officers, and employees;
(xi) all Contracts between any agreement under which the consequences of a default or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;termination could have a Material Adverse Effect.
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiariesagreement under which it has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(xiii) Contracts any agreement under which are (A) outside CTI has advanced or loaned any other Person amounts in the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or propertiesaggregate exceeding $7,500;
(xiv) all engagement letters any agreement with clients any Person containing any provision or covenant prohibiting or materially limiting the ability of the Company CTI to engage in any business activity or compete with any of its Subsidiaries under which any amount is or may become payable to the Company or any of its SubsidiariesPerson;
(xv) all Contracts under any agreement pursuant to which the Company or any of its Subsidiaries agrees to indemnify Lien has been imposed on any Person; andAcquired Assets;
(xvi) any agreement that limits or contains restrictions on the ability of CTI to incur or suffer to exist any Lien, to purchase or sell any assets, to change the lines of business in which it participates or engages or to engage in any merger or other Contract business combination; or
(xvii) any other agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.50,000. CTI has delivered to SYRIX a correct and complete list of each written agreement set forth in Section 3(p) of the Disclosure Schedule (as amended to date) and a written summary setting forth the material terms and conditions of each oral agreement referred to in Section 3(p) of the Disclosure Schedule. With respect to each such agreement, except as set forth in Section 3(p) of the Disclosure
(iA) Each Company Contract the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and effect in all material respects; (iiB) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, no party is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (C) no party has amended or loss of repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Asset Purchase Agreement (Herley Industries Inc /New)
Contracts. (a) Section 4.15(aSchedule 4.16(a) of the Company Disclosure Schedule sets forth a complete and accurate list of each Contract lists all Contracts, oral or written (collectively, “Material Contracts”) to which, as of the following types date of this Agreement, either the Company or having any Company Subsidiary is a party, or by which any of its tangible or intangible assets are bound, and which are currently in effect and constitute the following terms following:
(i) all Contracts that require payments or expenses incurred by, or payments or income to, the Company or any of the Company Subsidiaries of $100,000 or more, in the aggregate, over any 12-month period;
(ii) all sales, advertising, agency, lobbying, broker, sales promotion, market research, franchise, marketing or similar contracts and agreements, in each case requiring the payment of any commissions by the Company or any of the Company Subsidiaries in excess of $100,000 annually;
(iii) all Contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or any of the Company Subsidiaries or income or revenues related to any product of the Company or any of the Company Subsidiaries;
(iv) all employment Contracts, employee leasing Contracts, and consultant and sales representatives Contracts with any current officer, director, employee or consultant of the Company or any of the Company Subsidiaries, under which the Company or any of the Company Subsidiaries (A) has continuing obligations for payment of annual compensation of at least $75,000 (other than arrangements for at-will employment), (B) has severance or post termination obligations to such Person (other than COBRA obligations), or (C) has an obligation to make a payment upon consummation of the transactions contemplated hereby or as a result of a change of control of the Company;
(v) all Contracts creating a joint venture, strategic alliance, limited liability company and partnership agreements to which the Company or any of its the Company Subsidiaries is a party party;
(vi) all Contracts relating to any acquisitions or dispositions of any business or material assets by the Company or any of the Company Subsidiaries (other than acquisitions or dispositions of inventory in the ordinary course of business consistent with past practice), including, without limitation, Contracts (A) containing any standstill or similar agreement pursuant to which a Person has agreed not to acquire assets or securities of another Person and (B) with any supplier of a significant quantity of goods or components;
(vii) each Contract that (A) relates to the direct or indirect acquisition or disposition of any securities, capital stock or other similar interests, assets or business (whether by merger, sale of stock, sale of assets or otherwise) or (B) contains a put, call, right of first refusal, right of first offer or similar right pursuant to which the Company or any of its the Company Subsidiaries could be required to, directly or its indirectly, purchase or their properties sell, as applicable, any securities, capital stock or other interests, assets is or may be bound as business of the date hereof (collectively, the “Company Contracts”):any other Person;
(iviii) all Contracts providing for the employmentrelating to patents, retentiontrademarks, bonusservice marks, severance or trade names, brands, copyrights, trade secrets and other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative Intellectual Property rights of the Company or any of its Subsidiaries the Company Subsidiaries, including Contracts licensing Intellectual Property rights, other than (a) “shrink wrap” or other licenses for generally commercially available software (including open source software) or hosted services, (b) customer or channel partner Contracts substantially on the Company’s standard forms and not providing for payments by either the Company or the counterparty of more than $50,000 in aggregate, (c) Contracts with an entity in which Company’s own employees or contractors substantially on Company’s standard forms and providing for annual compensation of not more than $50,000, and (d) standard non-disclosure agreements (collectively, and excluding all material transfer and other sample agreements, services agreements and scientific advisory board agreements, “Standard Contracts”);
(ix) any Contract containing covenants restricting the Company or any of the foregoing is a controlling personCompany Subsidiaries from competing with any Person or in any line of business, industry or geographical area;
(iii) (Ax) all instruments relating to indebtedness Contracts providing for borrowed moneyguarantees, indemnification arrangements and other hold harmless arrangements made or provided by the Company or any noteof the Company Subsidiaries, bondincluding all ongoing agreements for repair, deed of trustwarranty, mortgagemaintenance, indenture service, indemnification or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien similar obligations other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000Standard Contracts;
(ivxi) all leaseContracts with or pertaining to the Company or any of the Company Subsidiaries to which any director, subleaseofficer, rentalor Affiliate of the Company or any of the Company Subsidiaries, license or other any Person beneficially owning 5% or more of the outstanding capital stock of the Company or any of their respective Affiliates, is a party;
(xii) all Contracts under relating to property or assets (whether real or personal, tangible or intangible) in which the Company or any of its the Company Subsidiaries is holds a leasehold interest (including the Leases) and which involve payments to the lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments thereunder in excess of $100,000 50,000 per annum and a term of at least twelve (12) monthsyear;
(vxiii) all Contracts containing relating to outstanding Indebtedness or Liens;
(xiv) any covenant Contract relating to (A) the voting or provision limiting control of the freedom or ability equity interests of the Company or any of its the Company Subsidiaries to engage in or (B) the election of directors of the Company or any line of business, engage in business in the Company Subsidiaries;
(xv) any geographical area or compete with any other Person or requiring exclusive dealings Contract not cancellable by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of Company Subsidiaries with no more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or 60 days’ notice if the effect of such cancellation would result in monetary penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,00050,000 per the terms of such contract;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
(i) Each Company Contract is legalthat can be terminated, valid, binding and enforceable against the Company or the party to such Company Contract provisions of which is a Subsidiary of the Companyare altered, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in by this Agreement or any of the Ancillary Agreements to which the Company or any of the Company Subsidiaries is a party;
(xvii) any Contract for which any of the benefits, compensation or payments (or the vesting thereof) will be increased or accelerated by the consummation of the transactions contemplated hereby or the amount or value thereof will be calculated on the basis of any of the transactions contemplated by this Agreement.;
(dxviii) There are no non-competition each Contract evidencing financial or non-solicitation commodity hedging or similar trading activities, including any interest rate swaps, financial derivatives master agreements or any confirmations, or futures account opening agreements and/or brokerage statements or similar agreements Contract;
(xix) each Contract that prohibits the payment of dividends or arrangements that could restrict or hinder the operations or conduct distributions in respect of the business capital stock or other equity interests of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any Company Subsidiaries, the pledging of the Stockholders (capital stock or Holders) or other equity interests of the Company or any of the Company Subsidiaries, or the incurrence of Indebtedness by the Company or any of the Company Subsidiaries;
(xx) each Contract obligating the Company or any of the Company Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single third party or granting any third party the exclusive right to develop, market, sell or distribute any of the Company’s or the Company Subsidiaries’ products or services;
(xxi) each Contract with current or former officers, directors or employees of the Company or any of the Company Subsidiaries, in each case in respect of which the Company or any of the Company Subsidiaries has any (A) ongoing base compensation obligations in excess of $50,000 on an annual basis; or (B) indemnification obligations;
(xxii) each Contract related to any settlement of any proceeding;
(xxiii) each collective bargaining agreement or Contract with any union, staff association, works council or other agency or representative body certified or otherwise recognized for the purposes of bargaining collectively with respect to employees of the Company or any of the Company Subsidiaries;
(xxiv) all contracts and agreements with any Governmental Authority to which the Company or any Company Subsidiary is a party, other than any Company Permits; and
(xxv) each Contract under which the consequences of a default, non-renewal or termination would reasonably be expected to have a Company Material Adverse Effect.
(b) Except as set forth on Schedule 4.16(b) of the Company Disclosure Schedule, each Material Contract is a valid and binding agreement, and is in full force and effect (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), and neither the Company nor any Company Subsidiary, nor, to the Company’s best knowledge, any other party thereto, is in material breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract. Except as set for the on Schedule 4.16(b) of the Company Disclosure Schedule, the Company and the Company Subsidiaries have not assigned, delegated, or otherwise transferred any of its Subsidiaries rights or obligations with respect to any Material Contracts, or granted any power of attorney with respect thereto. The Company has furnished or made available to Parent true and complete copies of all Material Contracts in effect as of the date of this Agreement, including amendments thereto that are material in nature.
(c) Except as set forth on Schedule 4.16(c) of the Company Disclosure Schedule, none of the execution, delivery or performance by the Company of this Agreement or Ancillary Agreements to which the Company or any Company Subsidiary is a party or may be subject the consummation by the Company of the transactions contemplated hereby or bound thereby constitutes a default under or gives rise to any right of termination, cancellation or acceleration of any obligation of the Company or any of the Company Subsidiaries or to a loss of any material benefit to which the Company or any of the Company Subsidiaries is entitled under any provision of any Material Contract.
(d) Except as set for the on Schedule 4.16(d) of the Company Disclosure Schedule, each of the Company and the Company Subsidiaries is in compliance with all covenants, including all financial covenants, in all notes, indentures, bonds and other than this Agreement instruments or pursuant agreements evidencing any Indebtedness which is intended to survive the Closing as described on Schedule 4.11(d) of the Company Disclosure Schedule. The Company and the Company Subsidiaries are not required to obtain any approval or consent from the lender under any Material Contracts relating to outstanding Indebtedness or Liens in connection with the consummation of the transactions contemplated by this Agreement).
Appears in 1 contract
Contracts. Schedule 3.1(z) lists the following contracts, understandings, commitments and agreements (a) Section 4.15(awritten or oral) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of the following types SSI or having the following terms to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):hereof:
(i) all Contracts providing for the employmentAll contracts, retention, bonus, severance understandings or commitments (other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedulethan leases), whether in the ordinary course of business or not, involving a present or future obligation to the extent there are continuing obligations purchase or deliver property, goods or services of the Company an amount or its Subsidiaries thereunder value in excess of $50,0005,000 each, or for a term in excess of one year;
(ii) all material Contracts (All collective bargaining agreements or other than employment contracts) contracts or commitments to or with any current labor union, employee representative or former officer, director, stockholder, employee, consultant, agent or other representative group of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling personemployees;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow moneyAll employment contracts, and any agreement relating all other contracts, agreements or commitments to the extension of credit or the granting of with individual directors, officers, employees, agents, representatives or consultants, for a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity period in excess of 30 days, or for a remuneration that exceeds or will exceed in accordance with present commitments, $100,0005,000 per annum;
(iv) all lease, sublease, rental, license All sales representative or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) monthssales agency agreements;
(v) all Contracts containing All guarantees or other agreements exceeding $5,000 individually or $5,000 in the aggregate that are intended to provide credit support with respect to the obligations of any covenant third party, including any partnership or provision limiting joint venture;
(vi) All contracts, understanding or commitments that purport to restrict the freedom or ability right of the Company SSI or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area location or compete with that conditions such right on the participation or approval of any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000third party;
(vii) all partnership All open purchase orders or joint venture Contracts;other contracts or commitments relating to the purchase or sale of goods or equipment with an invoice value of $5,000 or more; and
(viii) All (i) customer contracts and licenses entered into or amended on or after January 1, 1997 and (ii) to the best of SSI's knowledge, all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company other contracts in which SSI's or any of its Subsidiaries Subsidiary's liability for consequential damages or lost profits is the licensor or licensee thereunder) not expressly waived. There has not been any material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest default in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining obligation to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company be performed by SSI or any of its Subsidiaries under which any amount is material contract, commitment or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
(i) Each Company Contract is legal, valid, binding agreement and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither the Company SSI nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, has waived any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contractsuch contract, commitment or agreement.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Merger Agreement (Scientific Software Intercomp Inc)
Contracts. (a) Section 4.15(a) 3.19 of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms to which the Company or contracts and other agreements (including any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectivelycontracts and agreements listed in Sections 3.11, the “Company Contracts”):
(i) all Contracts providing for the employment3.16, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity 3.17 and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) 3.28 of the Disclosure Schedule), Schedule but excluding any contracts or agreements that are terminable by Amitek on not more than 30 days notice without penalty) to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000;which Amitek is a party:
(iia) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating (or group of related agreements) for the lease of personal property to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of from any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 25,000 per annum and a term of at least twelve (12) monthsyear;
(vb) all Contracts containing any covenant agreement (or provision limiting the freedom or ability group of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(virelated agreements) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and year, result in a material loss to Amitek or involve consideration in excess of $100,00025,000;
(viic) all any agreement concerning a partnership or joint venture Contractsventure;
(viiid) all Contracts any agreement (or purchase orders relating to capital expenditures involving total payments by the Company and group of related agreements) under which it has created, incurred, assumed, or guaranteed any Indebtedness in excess of $25,000 or under which it has imposed a Lien on any of its Subsidiaries of more than $100,000 per yearassets, tangible or intangible;
(ixe) all Contracts any agreement concerning confidentiality or noncompetition;
(f) any agreement relating to licenses Amitek, its assets, liabilities and business, or relating to the Amitek Shares, between or among Amitek or any Principal Seller and any of Intellectual Property their Affiliates;
(whether g) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the Company benefit of its current or former directors, officers, and employees;
(h) any collective bargaining agreement;
(i) any agreement providing for the employment or consultancy with any individual on a full-time, part-time, consulting or other basis in excess of $25,000 per year or providing severance or retirement benefits;
(j) any agreement under which it has advanced or loaned any amount to any of its Subsidiaries is stockholders, Affiliates, directors, officers, or employees other than in the licensor or licensee thereunder) material to the business Ordinary Course of the CompanyBusiness;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (Bk) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts agreement under which the Company consequences of a default or any of its Subsidiaries agrees to indemnify any Persontermination could have a Material Adverse Effect on Amitek; andor
(xvil) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 25,000 per year.
. The Principal Sellers have delivered to the Buyer a correct and complete copy of each written agreement listed in Section 3.19 of the Disclosure Schedule and a written summary setting forth the terms and conditions of each oral agreement referred to in Section 3.19 of the Disclosure Schedule. Except as disclosed in Section 3.19 of the Disclosure Schedule, with respect to each such agreement: (i) Each Company Contract the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and ; (ii) neither subject to the Company nor Buyer obtaining the necessary consents disclosed in Section 3.32 of the Disclosure Schedule, the agreement will continue to be legal, valid, binding, enforceable, and in full force and effect on materially identical terms following the consummation of the transactions contemplated hereby; (iii) no party is in breach or default in any of its Subsidiaries normaterial respect, and, to the Knowledge of the Company as of the date hereofPrincipal Sellers and Amitek, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (in any material respect, or give rise to any right of permit termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of acceleration, under the agreement; and (iv) no party has repudiated any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Merger Agreement (Century Electronics Manufacturing Inc)
Contracts. (a) Section 4.15(a) of the The Disclosure Schedule sets forth contains a complete and accurate correct list as of each Contract the date hereof of all agreements, contracts and commitments of the following types (and all amendments thereto), written or having the following terms oral, to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties is bound (excluding Leases and contracts or assets is agreements creating or may be bound as of the date hereof (collectively, the “Company Contracts”resulting in real property interests other than commercial office leases):
(i) all Contracts providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trustagreement, mortgage, indenture indenture, security agreement or agreement to borrow money, and any agreement other instrument relating to the extension borrowing of money or evidence of credit or the granting deferred purchase price of a Lien other than Permitted Liensproperty, or (B) any Contract of the direct or indirect guarantee of credit in favor by such entities of any Person such indebtedness or entity deferred purchase price in excess of $100,000;
(ivii) all lease, sublease, rental, license or other Contracts any lease of property providing for payments under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments at an annual rate in excess of $100,000 per annum 100,000;
(iii) any partnership or joint venture agreement providing for any capital contribution or expenditure at an annual rate in excess of $1,000,000;
(iv) any material management, employment and a term consulting agreement or other contract for personal services that is not terminable by any of at least twelve (12) monthssuch entities on not more than one month’s notice without penalty;
(v) all Contracts containing any covenant agreement providing for liability for severance pay, collective bargaining agreements, labor contracts, or provision limiting the freedom labor or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiariespersonnel policies;
(vi) (A) all Contracts for the purchase any surety, performance and maintenance bond or letter of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration credit in excess of $100,000;
(vii) any agreement or commitment for capital expenditures in excess of $1,000,000, for any single project (it being represented and warranted that the liability for capital expenditures under all partnership or joint venture Contractsundisclosed agreements and commitments does not exceed $2,500,000 in the aggregate for all projects);
(viii) all Contracts any plan, contract or purchase orders relating arrangement providing for bonuses, pensions, deferred compensation, retirement plan payments, profit sharing, incentive pay, or for any other employee benefit plan;
(ix) any brokerage or finder’s agreement;
(x) any agreement that (a) restricts the right of such entities to capital expenditures involving total engage in any place in any line of business, other than in the ordinary course of business or (b) would restrict the right of the Surviving Corporation or any subsidiary of the Surviving Corporation to engage in any line of business after the Closing Date, other than in the ordinary course of business;
(xi) any contract, commitment or agreement that involves the disposition after December 31, 2005 of any assets of any of such entities not in the ordinary course of business;
(xii) other than as contemplated in Section 6.6, any contract, commitment or agreement between any of such entities and any Stockholder which will require payments over the remaining term of such contract, commitment or agreement (without regard to any extensions of such term at the option of the Company or its Subsidiaries) in excess of $1,000,000 (other than those that will be terminated on or prior to Closing);
(xiii) any Oil and Gas Contract which requires any of the Company or its Subsidiaries to expend more than $1,000,000 in any calendar year;
(xiv) any other agreement, contract or commitment that would require payment by the Company and or its Subsidiaries of more than $100,000 per year;
1,000,000 during the remaining term of such agreement, contract or commitment (ix) all Contracts relating without regard to licenses any extensions of Intellectual Property (whether such term at the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity option of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;); and
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per yearHedging Agreement.
(ib) Each Company Contract is legalUpon request, valid, binding and enforceable against the Company or will make available to Purchaser complete and correct copies of all written agreements, contracts and commitments, together with all amendments thereto, described in subparagraph (a). To the party to such Company Contract which is a Subsidiary Knowledge of the Company, as the case may beall parties to such agreements, contracts and commitments have performed all obligations required to the Knowledge of the Company as of the be performed by them to date hereof, against each other party thereto, thereunder and is are not in full force and effect, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (thereunder other than this Agreement or pursuant such failures to this Agreement)perform and defaults as would not reasonably be expected to result in a Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Pogo Producing Co)
Contracts. (a) Section 4.15(ass.4(j) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements to which the Company or any of its Subsidiaries Buyer is a party or by which party, except contracts and other agreements involving a potential acquisition of the Company or any of its Subsidiaries or its or their properties capital stock or assets is or may be bound as of the date hereof (collectivelyBuyer, the “Company Contracts”):which by their terms are subject to a non-disclosure covenant:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00025,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and year, result in a material loss to the Buyer, or involve consideration in excess of $100,00050,000 per year;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $25,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or non-competition, except as hereinabove provided;
(vi) any agreement involving any of the Buyer Management Stockholders and their Affiliates (other than the Target);
(vii) all partnership any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or joint venture Contractsother material plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearany collective bargaining agreement;
(ix) all Contracts relating to licenses any agreement for the employment of Intellectual Property (whether the Company any individual on a full-time, part-time, consulting, or any other basis not cancelable on 30 days or less notice providing annual compensation in excess of its Subsidiaries is the licensor $25,000 or licensee thereunder) material to the business of the Companyproviding severance benefits;
(x) all Contracts relating any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the future disposition or acquisition Ordinary Course of any business enterprise or any interest in any business enterpriseBusiness;
(xi) all Contracts between except as otherwise listed pursuant to this ss.4(j), any agreement under which the consequences of a default or among (A) the Company or any of its Subsidiaries, termination could have a material adverse effect on the one handbusiness, and (B) any Stockholder (or Holder)financial condition, such Stockholder’s Affiliate (or Holder’s Affiliate)operations, or any Related Party (results of operations of the Buyer, other than client or customer sales contracts entered into in the Company), on Ordinary Course of Business of the other handBuyer;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract agreement (or group of related agreements) the performance of which involves annual consideration in excess of $100,000 per year.
(i50,000. The Buyer has delivered to the Target a correct and complete copy of each written agreement listed in ss.4(j) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the CompanyDisclosure Schedule (as amended to date) and a written summary setting forth the material terms and conditions of each oral agreement referred to in ss.4(j) of the Disclosure Schedule. With respect to each such agreement, as the case may be, and to the Knowledge of Buyer's Knowledge: (A) the Company as of the date hereof, against each other party thereto, and agreement is in full force and effecteffect and constitutes a legal, valid and (ii) neither the Company nor any of binding agreement, enforceable in accordance with its Subsidiaries norterms, to the Knowledge of the Company Buyer, except as such enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratoriums or other similar laws affecting the enforcement of creditors' rights generally and the date hereof, any other party, availability of equitable remedies (regardless of whether enforceability is considered in a proceeding at law or inequity); (C) no party is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration) or loss of any benefits , under any Company Contractthe agreement.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(a4(p) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements to which the Company or any of its Subsidiaries Application Methods is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00010,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments or the furnishing or receipt of more than $100,000, containing any escalation, renegotiation software or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services)Intellectual Property, the performance of which will extend over a period of more than one (1) year and year, result in a loss to Application Methods, or involve consideration in excess of $100,00025,000;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $10,000 or under which it has imposed a security interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition currently in effect which are substantially different from the forms attached to Section 4(p) of the Disclosure Schedule;
(vi) any agreement with Shareholders or Affiliates (other than Application Methods);
(vii) all partnership any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or joint venture Contractsother plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearany collective bargaining agreement;
(ix) all Contracts relating to licenses any agreement for the employment of Intellectual Property (whether the Company any individual on a full-time, part-time, consulting, or any other basis providing annual compensation in excess of its Subsidiaries is the licensor $40,000 or licensee thereunder) material to the business of the Companyproviding severance benefits;
(x) all Contracts relating any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the future disposition or acquisition Ordinary Course of any business enterprise or any interest in any business enterpriseBusiness;
(xi) all Contracts between any agreement under which the consequences of a default or among (A) the Company or any of its Subsidiaries, termination could have an adverse effect on the one handbusiness, and (B) any Stockholder (or Holder)financial condition, such Stockholder’s Affiliate (or Holder’s Affiliate)operations, results of operations, or any Related Party (other than the Company), on the other hand;future prospects of Application Methods; or
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.
(i10,000. The Shareholders have delivered to RMI a true, correct and complete copy of each written agreement or form agreement listed in Section 4(p) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as Disclosure Schedule and a written summary setting forth the case may be, terms and conditions of each oral agreement referred to the Knowledge in Section 4(p) of the Company as of the date hereof, against Disclosure Schedule. With respect to each other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries norsuch agreement, to the Knowledge of the Company as Shareholders: (A) the agreement is legal, valid, binding, enforceable, and in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable, and in full force and effect in identical terms following the consummation of the date hereof, any other party, transaction contemplated hereby; (C) no party is in material breach or default, and no event has occurred which could constitute (which, with or without notice or lapse of time or both) time, would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (D) or loss of no party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(a) Except as set forth on Schedule 5.14, none --------- ------------- of the Disclosure Schedule sets forth a complete and accurate list of each Contract Company or any of the following types Subsidiaries is a party to or having bound by:
(i) any contract for the following terms purchase or sale of real property;
(ii) any contract for the purchase by the Company or any of the Subsidiaries of services, supplies, components or equipment (including capital expenditures) which involved the payment of more than Fifty Thousand Dollars ($50,000) in the twelve months ended September 30, 1997, other than contracts terminable within sixty (60) days without penalty;
(iii) any indebtedness or contract to incur indebtedness of the Company or of any Subsidiary for borrowed money owed to any Person other than the Sellers or an Affiliate of the Sellers;
(iv) any agreement or contract to which the Company or any of its Subsidiaries Subsidiary is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):
(i) all Contracts providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of the stock or substantially all of the assets of, or an interest in, any business enterprise or any interest in any business enterprisePerson;
(xiv) all Contracts between or among (A) other than with respect to indebtedness, any binding guarantee by the Company or any Subsidiary of its Subsidiariesthe obligations of a third Person running to any Person that involves, on individually or in the one handaggregate, and a contingent liability of the Company or any Subsidiary of Fifty Thousand Dollars (B$50,000) or more;
(vi) any Stockholder binding indemnification agreement by the Company or any Subsidiary running to any Person that involves, individually or in the aggregate, a contingent liability of the Company or any Subsidiary of Fifty Thousand Dollars ($50,000) or Holder)more, such Stockholder’s Affiliate (or Holder’s Affiliate)other than in connection with customer contracts, Business Agreements entered into in the ordinary course of business, or with respect to directors or executive officers of the Company;
(vii) any Related Party agreement or contract providing for the collection or administration of accounts receivable by any Person (other than the Company), collection attorneys) on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity behalf of the Company or any of the Subsidiaries;
(viii) any binding agreement or contract by the Company or any of the Subsidiaries to buy accounts receivable or any interests or participation therein;
(ix) any binding agreement or contract containing any covenant or provision prohibiting the Company or any Subsidiary from engaging in any line or type of business (except for such agreements or contracts which shall not apply to the Company or any Subsidiary upon Closing) or competing with any Person in the Business in any geographic area;
(x) any agreement or contract limiting the right of the Company or any Subsidiary to pay dividends or distributions to its Subsidiariesshareholders;
(xi) any swap, hedge, derivative or interest rate protection agreement;
(xii) any contract in which the Company or any Subsidiary participates as a general partner or joint venturer or pursuant to which the Company or any Subsidiary is subject to any mandatory capital call;
(xiii) Contracts which are (A) outside any binding guarantee of indebtedness for borrowed money by the ordinary course of business for the purchase, acquisition, sale Company or disposition of any assets or properties or (B) for the grant Subsidiary running to any Person of any option or preferential rights to purchase any assets or propertiesPerson;
(xiv) all engagement letters any contract for the sale by the Company or of any of the Subsidiaries of any services or products of the Business that involved the payment to the Company or any of the Subsidiaries of more than Two Hundred Fifty Thousand Dollars ($250,000) in any twelve (12) month period (other than any contract or agreement with clients any customer); or
(xv) any other agreement which required the payment by or on behalf of the Company or any of its the Subsidiaries under of more than Two Hundred Fifty Thousand Dollars ($250,000) during the twelve months ended September 30, 1997 or, other than commercially available Software, which any amount is or may become payable material to the Company or any of and its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
(i) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(a3.13(a) of the Acquired Company Disclosure Schedule sets forth contains a complete and accurate list list, and Sellers have delivered or made available to Buyer’s Guarantor true and complete copies (with the exception of each Contract certain exhibits or schedules thereto), or written descriptions if not in writing, of the following types or having the following terms Contracts to which the Acquired Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):and that are currently in effect:
(i) all Contracts providing for the employmenteach Contract that involves performance of services, retention, bonus, severance or other service relationship with any current delivery of goods or former officer, director, employee, consultant or other person requiring compensation materials by the Acquired Company (the name, position of an amount or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder value in excess of $50,000;
(ii) all material Contracts (other than employment contracts) with any current each Contract that involves the performance of services or former officer, director, stockholder, employee, consultant, agent delivery of goods or other representative materials to the Acquired Company of the Company or any an amount in excess of its Subsidiaries or with an entity in which any of the foregoing is a controlling person$50,000;
(iii) (A) all instruments relating each Contract that is presently expected to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture result in a loss upon completion or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit performance thereof in favor of any Person or entity an amount in excess of $100,00050,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries each licensing Contract with respect to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts Intellectual Property assets that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Acquired Company, including agreements with current or former employees or consultants or Contracts regarding the appropriation or the nondisclosure of the Intellectual Property Assets;
(v) each collective bargaining agreement to or with any labor union or other employee representative of a group of employees and any Contract with any employee, officer or director of the Acquired Company in the nature of a compensation or employment arrangement;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Acquired Company with any other Person;
(vii) each Contract containing covenants that restrict the business activity of the Acquired Company or limit the freedom of the Acquired Company to compete with any Person;
(viii) each Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(ix) each Contract for capital expenditures with a remaining balance to be paid in excess of $50,000;
(x) all Contracts relating to documents creating any existing Indebtedness of the future disposition or acquisition of any business enterprise or any interest in any business enterpriseAcquired Company;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder Contract (or Holder), such Stockholder’s Affiliate (group of related Contracts with the same party) that includes provisions regarding minimum volumes or Holder’s Affiliate), or any Related Party (other than the Company), on the other handvolume discounts having a value in excess of $50,000 per year;
(xii) Contracts pertaining any Contract pursuant to which a rebate, discount, bonus, commission (including but not limited to broker or distributor Contracts) or other payment with respect to the issuance sale of debt or equity any product of the Acquired Company or any of its Subsidiariesthat cannot be terminated by the Acquired Company without penalty upon thirty (30) days notice;
(xiii) Contracts which are (A) outside any Contract involving any Seller and the ordinary course of business for the purchase, acquisition, sale Acquired Company or disposition of any assets or properties or (B) for the grant relating to any Person of Seller and any option or preferential rights to purchase any assets or propertiesEquity Securities;
(xiv) all engagement letters with clients each power of attorney on behalf of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its SubsidiariesAcquired Company;
(xv) all Contracts under which the Company each amendment, supplement, and modification (whether oral or written) in respect of any of its Subsidiaries agrees to indemnify any Personthe foregoing; and
(xvi) any each written warranty, guaranty, and or other Contract which involves consideration similar undertaking with respect to Contractual performance extended by the Acquired Company other than in excess the ordinary course of $100,000 per yearbusiness (such as continuing guarantees customarily provided to the Acquired Company’s customers in connection with the sale of food products).
(ib) Section 3.13(b) of the Acquired Company Disclosure Schedule contains a true and complete list of all material Contracts binding on the Acquired Company, with any officer, director or Affiliate of the Acquired Company; in each case a true and complete copy of such written Contract or a true and complete summary of such oral Contract has been delivered or made available to Buyer’s Guarantor heretofore.
(c) Each Contract required to be listed in Section 3.13(a) of the Acquired Company Contract Disclosure Schedule (collectively, the “Material Contracts”) is legal, valid, a valid and binding agreement and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Acquired Company, as the case may be, and to the Knowledge of the Company as of Acquired Company, enforceable against the date hereof, against each other party thereto, and is in full force and effectaccordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to creditors’ rights generally, and (ii) neither the Company nor any availability of its Subsidiaries nor, injunctive relief and other equitable remedies. No event has occurred or circumstances exist (to the Knowledge of the Acquired Company as with respect to actions of the date hereof, any other party, is in material breach or default, and no event has occurred which could constitute ) that (with or without the giving of notice or lapse of time time, or both) will result in a material violation or breach or default (of or give rise the other party the right to any right of terminationdeclare default in the material performance, modification, cancellation observance or acceleration) or loss fulfillment of any benefits under obligation, covenant or condition contained in any Company Material Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition This Section 3.13 does not relate to Leases, such items being the subject of Section 3.8, or non-solicitation agreements to Acquired Company Licenses or any similar agreements or arrangements that could restrict or hinder Third Party Licenses, such items being the operations or conduct subject of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement)Section 3.9.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ralcorp Holdings Inc /Mo)
Contracts. (a) Section 4.15(a4(o) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements to which the Company or any of Target and its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,000250,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000250,000;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $250,000 or under which it has imposed a Lien on any of its assets, tangible or intangible;
(v) any material agreement concerning confidentiality (other than those entered into with respect to the sale of Target) and any agreement concerning exclusivity or noncompetition;
(vi) any agreement with any of Sellers and their Affiliates (other than Target and its Subsidiaries);
(vii) all partnership any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or joint venture Contractsother material plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearany collective bargaining agreement;
(ix) all Contracts relating any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis;
(x) any agreement under which it has advanced or loaned any amount to licenses any of Intellectual Property its directors, officers, and employees other than advances of expenses in the Ordinary Course of Business;
(whether xi) any agreement under which the Company consequences of a default or termination could have a Material Adverse Effect;
(xii) any agreement under which it has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(xiii) any agreement under which Target or any of its Subsidiaries is has advanced or loaned any other Person amounts in the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or propertiesaggregate exceeding $250,000;
(xiv) all engagement letters with clients of the Company any agreement pursuant to which Target or any of its Subsidiaries under which has agreed to indemnify any amount is current or may become payable former director, officer or employee of or consultant to the Company Target or any of its Subsidiaries;
(xv) all Contracts any agreement under which the Company Target or any of its Subsidiaries agrees is, or may become, obligated to indemnify pay any Person; and
(xvi) amount in respect of indemnification obligations, purchase price adjustment or otherwise in connection with any other Contract which involves consideration in excess of $100,000 per year.
(i) Each Company Contract is legalacquisition or disposition of assets or securities (other than the sale of inventory in the Ordinary Course of Business), valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries normerger, to the Knowledge of the Company as of the date hereof, any consolidation or other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).combination; and
Appears in 1 contract
Contracts. (a) Section 4.15(aTo Seller’s Knowledge , §3(n) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements to which the Company or any of its Subsidiaries Seller is a party and which relate to the Acquired Businesses or to which DJS is a party, in each case that were not entered into by which the Company Acquired Businesses or any DJS in the Ordinary Course of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):Business:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00010,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) 1 year and or involve consideration in excess of $100,00010,000;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $10,000 or under which it has imposed a Lien on any of its assets, tangible or intangible;
(v) any material agreement concerning confidentiality or non-competition;
(vi) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the benefit of its current or former directors, officers, and employees;
(vii) all partnership any agreement for the employment of any individual on a full-time, part-time, consulting, or joint venture Contractsother basis providing annual compensation in excess of $30,000 or providing material severance benefits;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearany collective bargaining agreement;
(ix) all Contracts relating to licenses any settlement, conciliation or similar agreement, the performance of Intellectual Property (whether which will involve payment after the Company or any Closing Date of its Subsidiaries is the licensor or licensee thereunder) material to the business consideration in excess of the Company$10,000;
(x) all Contracts relating to any agreement under which Seller or DJS has advanced or loaned any other Person amounts in the future disposition or acquisition of any business enterprise or any interest in any business enterprise;aggregate exceeding $10,000; or
(xi) all Contracts between any other agreement (or among (Agroup of related agreements) the Company or any performance of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
10,000 and is not covered by items (i) Each Company Contract through (ix) above. Seller has delivered to Buyer a correct and complete copy of each written agreement listed in §3(n) of the Disclosure Schedule (as amended to date) and a written summary setting forth the material terms and conditions of each oral agreement referred to in §3(n) of the Disclosure Schedule. With respect to each such agreement: (A) the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and effect in all material respects; (iiB) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, no party is in material breach or default, and no event has occurred which could constitute (that with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (C) or loss of any benefits under any Company Contract.
(c) The Company no party has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or repudiated any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Asset Purchase Agreement (Authentidate Holding Corp)
Contracts. Section 3.12 of the Seller Disclosure Schedule lists the following Contractual Obligations to which the Seller is a party:
(a) Section 4.15(aany Contractual Obligation concerning confidentiality or noncompetition;
(b) of any Contractual Obligation between or among the Disclosure Schedule sets forth a complete Seller and accurate list of each Contract of the following types or having the following terms to which the Company or any of its Subsidiaries Affiliates which is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):
(i) all Contracts providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000not on arms-length terms;
(iic) all material Contracts (other than employment contracts) with any current Contractual Obligation under which the consequences of a default or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is termination would be reasonably expected to have a controlling personSeller Material Adverse Effect;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (Bd) any Contract Contractual Obligation (or group of guarantee related Contractual Obligations) for the lease of credit in favor of personal property to or from any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months5,000 annually;
(ve) all Contracts containing any covenant Contractual Obligation (or provision limiting the freedom or ability group of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (iirelated Contractual Obligations) for the sale by the Company furnishing or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision receipt of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,0005,000 per 12 month period;
(viif) all any Contractual Obligation concerning a partnership or joint venture Contractsin which the Seller is or is obligated to become a partner or joint venturer;
(viiig) all Contracts any Contractual Obligation (or purchase orders relating to capital expenditures involving total payments by the Company and group of related Contractual Obligations) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money or under which it has imposed a Lien (other than a Permitted Lien) on any of its Subsidiaries of more than $100,000 per yearassets, tangible or intangible;
(ixh) all Contracts relating any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of its current or former directors, officers, and employees under which any benefits are currently payable or could reasonably be expected to licenses of Intellectual Property be payable in the future;
(whether i) any Contractual Obligation providing for the Company employment or consultancy with any individual on a full-time, part-time, consulting or other basis or providing severance or retirement benefits under which any compensation, benefits or other payments are currently payable or could reasonably be expected to be payable in the future;
(j) any Contractual Obligation under which it has advanced or loaned any amount to any of its Subsidiaries is Stockholders, Affiliates, directors, officers, or employees other than in the licensor or licensee thereunder) material to the business Ordinary Course of the CompanyBusiness;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (Bk) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts Contractual Obligation under which the Company consequences of a default or any of its Subsidiaries agrees termination could reasonably be expected to indemnify any Personhave a Seller Material Adverse Effect; andor
(xvil) any other Contract Contractual Obligation (or group of related Contractual Obligations) the performance of which involves consideration in excess of $100,000 per year.
(i) Each Company Contract is legal, valid, binding 5,000. The Seller has made available to the Buyer a correct and enforceable against the Company or the party to such Company Contract which is a Subsidiary complete copy of each written Contractual Obligation listed in Section 3.12 of the Company, Seller Disclosure Schedule (as the case such Contractual Obligation may be, and have been amended to the Knowledge date of this Agreement) and a written summary setting forth the terms and conditions of each oral Contractual Obligation referred to in Section 3.12 of the Company Seller Disclosure Schedule. Except as disclosed in Section 3.12 of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries norSeller Disclosure Schedule, to the Knowledge of the Company as Seller, with respect to each such agreement: (i) the agreement is legal, valid, binding, Enforceable, and in full force and effect; (ii) subject to the Buyer obtaining the necessary consents disclosed in Section 3.17 of the date hereofSeller Disclosure Schedule, any other partythe agreement will continue to be Enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated hereby (including the assignments and assumptions referred to in § 2 above); (iii) since the Reorganization Date, no party is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; (iv) or loss of since the Reorganization Date, no party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modificationagreement; and (v) none of such agreements is, waiver when considered singly or termination of any Company Contract. Except as set forth on Section 4.15(c) of in the Disclosure Scheduleaggregate with others, no Company Contract is terminable unduly burdensome or cancelable as onerous to the Seller or likely to result in a result of the consummation of the transactions contemplated in this AgreementSeller Material Adverse Effect.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Asset Purchase Agreement (First Avenue Networks Inc)
Contracts. (a) Section 4.15(aSchedule 5.13(a) of the Company Disclosure Schedule sets forth a complete and accurate list of each Contract of Schedules lists all material Contracts, oral or written (collectively, the following types or having the following terms “Material Contracts”) to which the Company or any of its Subsidiaries Subsidiary is a party or by and which are currently in effect and constitute the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):following:
(i) all Contracts providing for that require annual payments or expenses by, or annual payments or income to, the employmentCompany of $200,000 or more (other than standard purchase and sale orders entered into in the ordinary course of business consistent with past practice), retentionincluding without limitation the Exclusive Distribution Agreement with Cardinal Health 105 Inc.,
(ii) all sales, bonusadvertising, severance agency, lobbying, broker, sales promotion, market research, marketing or other service relationship similar contracts and agreements, in each case requiring the payment of any commissions by the Company in excess of $200,000 annually;
(iii) all employment Contracts, employee leasing Contracts, and consultant and sales representatives Contracts with any current or former officer, director, employee, employee or consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess other Person, under which the Company (A) has continuing obligations for payment of annual compensation of at least $50,000;
(ii) all material Contracts 200,000 (other than employment contractsoral arrangements for at-will employment), (B) with any current has material severance or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
post termination obligations to such Person (iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted LiensCOBRA obligations), or (BC) any Contract has an obligation to make a payment upon consummation of guarantee the transactions contemplated hereby or as a result of credit in favor a change of any Person or entity in excess control of $100,000the Company;
(iv) all leaseContracts creating a material joint venture, subleasean exclusive contractual relationship or a strategic alliance, rental, license and all limited liability company and/or partnership/LLC/shareholder agreements to which the Company is a party;
(v) all Contracts relating to any material acquisitions or other dispositions of assets by the Company in excess of $150,000;
(vi) all Contracts (i) under which the Company or any of its Subsidiaries is currently: (A) licensing or otherwise providing the right to use to any third party any Owned Intellectual Property, or (B) licensing or otherwise receiving the right to use from any third party any Intellectual Property, with the exception of (1) non-exclusive licenses and subscriptions to commercially available software or technology with a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments dollar value individually not in excess of $100,000 per annum 150,000 and “shrink wrap” licenses, (2) any Contract related to open source software, or (3) any Contract under which the Company licenses or receives a term license to any Intellectual Property in the ordinary course of at least twelve its business, and (12ii) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of under which the Company or any of its Subsidiaries has entered into an agreement not to engage in assert or s▇▇ with respect to any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000Intellectual Property;
(vii) all partnership Contracts that substantially limit the freedom of the Company or joint venture Contractsany Subsidiary to compete in any line of business with any Person or in any geographic area;
(viii) all Contracts guarantees of indebtedness of any Subsidiary or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than any other Person in an amount of $100,000 per year200,000 or more;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Companywith Sorrento;
(x) all Contracts relating to real or tangible property or assets in which the future disposition or acquisition Company holds a leasehold interest (including the Company Leases) and which involve payments to the lessor thereunder in excess of any business enterprise or any interest in any business enterprise$30,000 per month;
(xi) all Contracts between or among (Arelating to outstanding Indebtedness set forth on Schedule 5.9(d) of the Company Disclosure Schedules, including financial instruments of indenture or any security instruments (typically interest-bearing) such as notes, mortgages, loans and lines of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other handcredit;
(xii) Contracts pertaining any Contract relating to the issuance voting or control of debt or the equity interests of the Company or any the election of its Subsidiariesdirectors of the Company (other than the Organizational Documents of the Company);
(xiii) Contracts which are (A) outside the ordinary course of business for the purchaseany material Contract that can be terminated, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
(i) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract provisions of which is a Subsidiary of the Companycan or will be adversely altered, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated by this Agreement or any of the Additional Agreements to which the Company is a party;
(xiv) all research and development contracts with annual payments in excess of $200,000;
(xv) any Contract for which any of the benefits, compensation or payments (or the vesting thereof) with respect to a director, officer, employee or consultant of a member of Company will be increased or accelerated by the consummation of the transactions contemplated hereby or the amount or value thereof will be calculated on the basis of any of the transactions contemplated by this Agreement; and
(xvi) any Contract relating to any pending merger, equity acquisition or disposition, or any purchase or sale of all or substantially all the assets of any Person.
(db) There are Except for any Material Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date (i) each Material Contract is a valid and binding agreement, and is in full force and effect, (ii) neither the Company nor, to the knowledge of the Company, any other party thereto, is in breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Material Contract in any material respect, (iii) the Company has not assigned, delegated, or otherwise transferred any of its rights or obligations with respect to any Material Contract, or granted any power of attorney with respect thereto or to any of the Company’s assets, and (iv) no Contract (A) requires the Company to post a bond or deliver any other form of security or payment to secure its obligations thereunder or (B) imposes any non-competition covenants that may be binding on, or non-solicitation agreements restrict the Business or require any payments by or with respect to any Parent Party or any similar agreements or arrangements that could restrict or hinder of its Affiliates, in each case, other than as would not be material to the operations or conduct Company and its Subsidiaries taken as a whole. The Company previously provided to the Parent Parties true and correct fully executed copies of each written Material Contract.
(c) Each of the business transactions between the Company or any Subsidiary, on the one hand, and any Stockholder, officer, employee or director of the Company or any Affiliate of its Subsidiaries any such Person, on the other hand (collectively, the “Related Party”) (if any) entered into or occurring prior to the use Closing (i) is an arms-length transaction in all material respects , or (ii) is transaction duly approved by the board of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any directors in accordance with the Organizational Documents of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement)such Subsidiary.
Appears in 1 contract
Contracts. (a) Section 4.15(a) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of 3.14 lists the following types or having the following terms Contracts and other agreements to which the Company or any of its Subsidiaries is a party other than Customer Contracts which are set forth on Schedule 3.24 (and which constitute all Contracts with Major Customers), real estate leases and subleases, which are set forth on Schedule 3.10(b), and contracts relating to Intellectual Property rights set forth on Schedule 3.11:
(a) any Contract (or by which group of related Contracts) for the lease of personal property to or from any Person providing for lease payments in excess of $50,000 per annum;
(b) any Contract (or group of related contracts) between the Company and any Major Supplier;
(c) any capitalized lease, pledge, conditional sale or title retention agreement involving the payment of more than $50,000 in the aggregate;
(d) any Contract concerning a partnership or joint venture;
(e) 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, or any agreement to act as one of the foregoing on behalf of any Person;
(f) any form of Contract concerning confidentiality or noncompetition or otherwise prohibiting the Company from freely engaging in any business;
(g) any Contract among Seller or any Affiliate thereof;
(h) any license, royalty or other Contract relating to Intellectual Property;
(i) any collective bargaining agreement;
(j) any Contract for the employment of any individual on a full-time, part-time, consulting, or other basis (other than for contract employees) providing annual compensation in excess of $50,000 or providing severance benefits;
(k) any Contract, whether or not fully performed, relating to any acquisition or disposition of the Company or any predecessor in interest or any acquisition or disposition of any subsidiary, division, line of business, or real property;
(l) any Contract under which it has advanced or loaned any amount to any of its Subsidiaries directors, officers, and employees;
(m) any Contract under which the consequences of a default or its termination could have an adverse effect on the business, financial condition, operations, results of operations, or their properties or assets is or may be bound as future prospects of the date hereof (collectively, the “Company Contracts”):Company;
(in) all Contracts providing for any other Contract (or group of related Contracts) the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate performance of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder which involves consideration in excess of $50,000;
(iio) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which commitment to do any of the foregoing is a controlling person;
described in clauses (iiia) through (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating q). Seller has delivered to the extension Buyer a correct and complete copy (or form of credit or the granting Contract for certain Contracts so identified on Schedule 3.14) of a Lien other than Permitted Liens, or each written Contract listed in Schedule 3.14 and each written Customer Contract (Bin each case as amended to date) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term written summary setting forth the terms and conditions of at least twelve (12) months;
(v) all each oral Contract referred to in Schedule 3.14 and each oral Customer Contract. With respect to each such Contract and the Customer Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among listed on Schedule 3.24: (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
(i) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effecteffect except as such enforcement may be limited or prohibited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of rights generally and by general principles of equity (whether applied in a proceeding, at law or in equity); (B) the Contract will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated hereby except as such enforcement may be limited or prohibited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of rights generally and by general principles of equity (iiwhether applied in a proceeding, at law or in equity); (C) neither other than breaches by Seller or the Company nor any disclosed in Schedule 3.14 of its Subsidiaries northe Disclosure Schedule, including breaches under contracts with Major Customers, Polaroid is not in breach or default and, to the Knowledge of the Company as of the date hereofPolaroid, any other no third party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the Contract; and (D) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating only as of the date hereof hereof, to the Knowledge of Polaroid, no party has repudiated any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) provision of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this AgreementContract.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(a) 4.l7 of the Cogent Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts, agreements, commitments and other arrangements currently in effect to which the Company or any of its Subsidiaries Cogent is a party or by which the Company Cogent or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):bound:
(ia) all Contracts providing any agreement (or group of related agreements) for the employment, retention, bonus, severance lease of personal property to or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of from any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 12,000 per annum and a term of at least twelve (12) monthsannum;
(vb) all Contracts containing except for purchase orders issued in the Ordinary Course of Business, any covenant agreement (or provision limiting the freedom or ability group of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(virelated agreements) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one year or involves consideration in excess of $50,000;
(1c) any agreement for the purchase of supplies, components, products or services from single source suppliers, custom manufacturers or subcontractors the performance of which will extend over a period of more than one year or involves consideration in excess of $50,000;
(d) any agreement concerning a partnership or joint venture;
(e) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money or any capitalized lease obligation in excess of $50,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(f) any agreement concerning confidentiality, noncompetition or restraint of trade;
(g) any agreement with any Cogent shareholder or any of such shareholder's Affiliates (other than Cogent) or with any Affiliate of Cogent;
(h) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of its current or former directors, officers, and involve employees;
(i) any collective bargaining agreements;
(j) any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis;
(k) any agreement under which Cogent has advanced or loaned any amount to any of its directors, officers, and employees;
(l) any other agreement under which the consequences of a default or termination could have a Material Adverse Effect on Cogent;
(m) any agreement with any original equipment manufacturer involving consideration in excess of $100,000;
(viin) all partnership any agreement pursuant to which Cogent is obligated to provide maintenance, support or joint venture Contractstraining for its products;
(viiio) all Contracts any standard form agreement used by Cogent, including, but not limited to, any purchase order, statement of standard terms and conditions of sale, or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearemployment offer letter;
(ixp) all Contracts relating any agreement pursuant to licenses of Intellectual Property (whether the Company or which any of its Subsidiaries Cogent's products is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Personmanufactured; and
(xviq) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.
50,000 or which is expected to continue for more than six months from the date hereof. Cogent has delivered to Adaptec a correct and complete copy of each written agreement listed in Section 4.17 of the Cogent Disclosure Schedule (ias amended to date) Each Company Contract and a written summary setting forth the terms and conditions of each oral agreement referred to in Section 4.17 of the Cogent Disclosure Schedule. Except as set forth on Section 4.17 of the Cogent Disclosure Schedule, with respect to each such agreement: (A) the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and effect in all respects in accordance with its terms; (iiB) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, no party is in material breach or default, and no event has occurred occurred, which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (C) or loss of no party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).agreement;
Appears in 1 contract
Contracts. (a) Section 4.15(a) 5.17 of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements to which the Company or any of its Subsidiaries BBP is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(ia) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00025,000 per annum;
(iib) all material Contracts (other than employment contracts) with any current agreement concerning a partnership or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling personjoint venture;
(iiic) any agreement (Aor group of related agreements) all instruments relating to under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any notecapitalized lease obligation or under which a Security Interest has been imposed on any of its assets, bondtangible or intangible;
(d) any agreement concerning confidentiality or noncompetition;
(e) any agreement with any Shareholder or any Affiliate of any Shareholder;
(f) any profit sharing, deed stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the benefit of trustits current or former directors, mortgage, indenture or agreement to borrow moneyofficers, and employees;
(g) any agreement relating to for the extension employment of credit or the granting of any individual on a Lien other than Permitted Liensfull-time, part-time, consulting, or (B) any Contract of guarantee of credit in favor of any Person or entity other basis providing annual compensation in excess of $100,00050,000 or providing severance benefits;
(ivh) all leaseany agreement under which it has borrowed, subleaseadvanced or loaned any amount to any of its directors, rental, license or other Contracts officers and employees outside the Ordinary Course of Business;
(i) any agreement under which the Company consequences of a default or any of its Subsidiaries is termination could have a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;Material Adverse Effect on BBP; or
(vj) all Contracts containing any covenant agreements with employees or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or consultants for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation material goods or redetermination provisions, services other than Contracts that are terminable within ninety (90) days without premium or penalty on arm's-length terms and in the Ordinary Course of Business. BBP has delivered to the Company or any Fundtech a correct and complete copy of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers each written agreement listed in Section 5.17 of the business Disclosure Schedule (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Section 5.17 of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration Disclosure Schedule. Except as set forth in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business Section 5.17 of the Company;
(x) all Contracts relating Disclosure Schedule, with respect to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among each such agreement: (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
(i) Each Company Contract agreement is legal, valid, binding and binding, enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, BBP and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable against BBP and the respective counterparty, and in full force and effect on identical terms following the consummation of the transactions contemplated hereby; (iiC) neither the Company nor any of its Subsidiaries norBBP or, to the Knowledge of the Company as of the date hereofBBP, any other partyparty thereto, is in material breach or defaultdefault in any material respect, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute such a material breach or default (by, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (D) or loss of no party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contractagreement. Except as set forth on in Section 4.15(c) 5.17 of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated transaction described herein will not affect any of the agreements disclosed herein in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements a manner that could restrict or hinder the operations or conduct of reasonably be expected to have a Material Adverse Effect on the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement)BBP.
Appears in 1 contract
Contracts. (a) Section 4.15(aSection 4.13(a) of the Disclosure Schedule sets forth a correct and complete and accurate list of each Contract of the following types Contracts (including any amendment, supplement or having the following terms modification (whether written or verbal) thereto) (other than Employee Plans) to which the Company or any of its Subsidiaries is a party or bound, in each case pursuant to which the Company, its applicable Subsidiary or any other party thereto has any continuing obligation (each, as amended, supplemented or modified to date, a “Material Contract”):
(i) each Real Property Lease and each other Contract pursuant to which the Company or its applicable Subsidiary currently leases or subleases real or personal property to or from any Person, in each case, for rent amounts of more than $250,000 per annum;
(ii) each Contract (A) for employment of any officer or individual employee of the Company or any of its Subsidiaries on a full-time or part-time basis providing annual cash compensation in excess of $150,000 (other than offer letters that are not required to be disclosed on Section 4.11(a) of the Disclosure Schedule), or (B) for the engagement of any consultant or other service provider of the Company or any of its Subsidiaries which (I) provides for annual cash compensation in excess of $150,000 or (II) is not terminable on thirty (30) days’ notice or less without material liability;
(iii) [INTENTIONALLY OMITTED];
(iv) each collective bargaining agreement, labor contract or other written agreement or arrangement with any labor union or any employee organization or contract, agreement or arrangement with a professional employer organization, co-employer organization, human resources or benefits outsourcing entity, or similar vendor or provider;
(v) each Contract providing for severance or other post-termination compensation payment in excess of $150,000 to any officer, individual employee, or other Person on a full-time, part-time, consulting or other basis which has any outstanding payment obligation or which is not terminable on less than thirty (30) days’ notice;
(vi) each Contract (other than purchase orders and invoices entered into by the Company or its applicable Subsidiary in the Ordinary Course of Business) that involves future payments, performance of services or delivery of goods or materials to or by the Company or its applicable Subsidiary of any amount or value reasonably expected to exceed $250,000 in the current fiscal year or the next fiscal year;
(vii) each Contract related to material Intellectual Property owned or licensed by the Company or any of its Subsidiaries, including (A) Contracts by which any material Intellectual Property is licensed by or to the Company or any of its Subsidiaries or that involves annual individual license or maintenance fees in excess of $500,000 and (B) co-existence, concurrent use, and consent to use Contracts (excluding Licenses for Generally Commercially Available Software and non-exclusive licenses granted to customers, contractors or service providers of the Company or any of its Subsidiaries in the Ordinary Course of Business);
(viii) each joint venture or partnership with a third party, including any Contract involving the sharing of the Company’s and/or its Subsidiaries’ profits with such third party;
(ix) each Contract that prohibits the Company or any of its Subsidiaries from competing in any line of business or in any geographic area or with any Person or that restricts the Company’s or one of its Subsidiary’s ability to (A) purchase or deliver any products or services, (B) solicit or hire any person as an employee (excluding any agreements relating primarily to confidentiality or nondisclosure which are entered into by the Company or such Subsidiary in the Ordinary Course of Business) or (C) charge certain prices pursuant to a “most-favored nation” or similar clause;
(x) each Contract set forth or required to be set forth on Section 4.18 of the Disclosure Schedule;
(xi) any Contract pursuant to which the Company or any of its Subsidiaries has granted or its otherwise permitted to exist a Lien (other than any Permitted Lien) on any material asset or their properties or group of assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):
(i) all Contracts providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000Company;
(iixii) all material Contracts each settlement, conciliation or similar Contract (other than employment contractsA) with any current Governmental Entity or former officer, director, stockholder, employee, consultant, agent or other representative of (B) pursuant to which the Company or any of its Subsidiaries or with an entity in which has any outstanding obligation after the date of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity this Agreement in excess of $100,000;
(ivxiii) all leaseeach Contract with a Third Party Payor from which the Company has received reimbursement in excess of $250,000 in any twelve (12) month period;
(xiv) each Contract with a Referral Source involving payment in excess of $250,000;
(xv) each Contract with any Material Customer or Material Supplier (other than purchase orders entered into by the Company or its applicable Subsidiary in the Ordinary Course of Business);
(xvi) involving acquisitions or dispositions (in each case whether by merger, subleasepurchase or sale of assets or stock or otherwise) by the Company or any of its Subsidiaries of any company (or a material portion of its assets), rentalbusiness or line of business, license (A) entered into since December 31, 2016 or (B) as to which the Company or any of its Subsidiaries has any continuing payment obligations or any material indemnification or other Contracts material obligations;
(xvii) each Contract under which the Company or any of its Subsidiaries is a lessor has made advances or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments loans to another Person in excess of $100,000 per annum and a term of at least twelve (12) months;100,000; and
(vxviii) all Contracts containing any covenant each Contract relating to the voting or provision limiting the freedom control of equity securities, preemptive rights, registration rights, transfer restrictions, information rights, preferential purchase rights, tag-along rights, or ability drag-along obligations, in each case, relating to securities of the Company or any of its Subsidiaries to engage in (other than wholly-owned Subsidiaries) or the holders of any line such securities; 48
(xix) each Contract governing the terms of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company Indebtedness or any of its Subsidiaries;guaranty in respect thereof.
(vib) (A) The Company has provided Parent with a true and complete copy of each Material Contract, together with all Contracts for amendments, waivers or other changes thereto, and in the purchase case of materialsany oral contract that is also a Material Contract, inventorya true and complete written description of the terms thereof. With respect to each Material Contract, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of such Material Contract is the business legal and valid obligation of the Company or any of its Subsidiariesapplicable Subsidiary party thereto, enforceable against such Person in accordance with its terms, except as enforceability may be limited by the Enforceability Exceptions, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
(i) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as Company, such Material Contract is the legal and valid obligation of the date hereof, against each other party thereto, enforceable against such Person in accordance with its terms, except as enforceability may be limited by the Enforceability Exceptions, and (iii) such Material Contract is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries applicable Subsidiary party thereto, nor, to the Knowledge of the Company as of the date hereofCompany, any other partyparty thereto, is in material breach or default, default thereunder and no event has occurred which could constitute (or circumstance exists which, with or without notice or lapse the delivery of notice, the passage of time or both) , would constitute such a material breach or default (or give rise to any right of termination, modification, cancellation permit the termination or acceleration) or loss acceleration of any benefits payment under any Company such Material Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as ability of the date hereof any modification, waiver Company to perform all obligations required to be performed by it under the Material Contracts has not been materially limited or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable adversely affected by or cancelable as a result of COVID 19 or any COVID 19 Measure in any material respect. To the consummation Knowledge of the transactions contemplated in this Agreement.
(d) There are no non-competition Company, the ability of each other party to each Material Contract to perform all obligations required to be performed by it under the applicable Material Contracts has not been materially limited or non-solicitation agreements adversely affected by or as a result of COVID-19 or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or COVID 19 Measure in any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement)material respect.
Appears in 1 contract
Sources: Merger Agreement (AdaptHealth Corp.)
Contracts. (a) Section 4.15(a) True and complete copies of each of the Disclosure Sold Contracts listed on Schedule sets forth a complete 2.01(c) have been made available to Buyer or its representatives, together with all amendments and accurate list of modifications thereto. Schedule 5.10(a) lists each Contract of the following types contracts and agreements (whether made in writing or having the following terms orally) to which the Company any Seller or any of its Subsidiaries their respective Affiliates is a party that primarily relate to the Polymer Additives Business or the Sold Assets or by which the Company or any of its Subsidiaries or its or their properties properties, rights or assets is or may be bound as of the date hereof Polymer Additives Business or the Sold Assets are bound (collectively, the “Company Material Contracts”):
(i) all Contracts providing for the employment, retention, bonus, severance each contract or other service relationship agreement with any current Material Customer or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000Material Supplier;
(ii) all material Contracts (each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other than employment contracts) with contract affecting the ownership of, leasing of, title to, use of, or any current or former officer, director, stockholder, employee, consultant, agent leasehold or other representative interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of the Company or any less than $10,000 and with terms of its Subsidiaries or with an entity in which any of the foregoing is a controlling personless than one year);
(iii) (A) all instruments relating to indebtedness for borrowed moneyeach joint venture, partnership or contract involving a sharing of profits, losses, costs or liabilities with any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000Person;
(iv) all lease, sublease, rental, license each contract or agreement providing for the payment of any cash or other Contracts compensation or benefits upon the consummation of the transactions contemplated by this Agreement;
(v) each contract or agreement with any labor or trade union or organization, or any individual severance agreement with any of Sellers’ officers, managers, directors or employees;
(vi) each contract or agreement under which any Seller has advanced or loaned to any other Person amounts in the Company aggregate exceeding $10,000;
(vii) each employment, consulting or other contract with any of its Subsidiaries is a lessor Sellers’ officers, managers, directors or lessee of any real property employees;
(viii) all contracts and agreements (other than Employee Plans) involving, or the guarantee of any such leasethat would reasonably be expected to involve, sublease, rental aggregate consideration or other Contracts providing for lease or rental payments value in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting $250,000 in the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearaggregate;
(ix) all Contracts contracts and agreements relating to licenses of Intellectual Property (whether the Company indebtedness or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the CompanyCredit Support Obligations;
(x) all Contracts relating to the future disposition licenses or acquisition of other contracts or agreements under which any business enterprise Seller or any interest of its Affiliates has obtained or granted a license to use or other rights in any business enterpriseIntellectual Property used in the Polymer Additives Business (except for (A) any non-exclusive license implied by the sale of a product and (B) any perpetual, paid-up commercially-available software licenses under which a Seller is the licensee, in each case, with fees of less than $25,000 per year);
(xi) all Contracts leases or subleases for the Leased Real Property and any other real property rights or interests used or held for use by Sellers and its Affiliates in the Polymer Additives Business;
(xii) all contracts and agreements with a Governmental Authority (whether as prime contractor, indirectly as subcontractor or otherwise);
(xiii) all contracts and agreements that grant any customer of the Polymer Additives Business “most favored nation” or similar terms (whether in respect of pricing, volume or otherwise);
(xiv) all contracts and agreements relating to the Polymer Additives Business between either of the Sellers or among (A) the Company or any of its Subsidiariestheir respective Affiliates, on the one hand, and (B) any Stockholder (either of the Sellers or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company)their respective Affiliates, on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;; and
(xv) all Contracts under which powers of attorney that would be binding on Buyer or the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per yearPolymer Additives Business after the Closing.
(b) The contracts and agreements listed on Schedule 5.10(a) that are not Sold Contracts have an asterisk next to them. Except as set forth on Schedule 5.10(b), each Sold Contract (i) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither is a legal, valid and binding agreement of the Company nor any of its Subsidiaries norSeller that is a party to such Sold Contract and, to the Knowledge of the Company as Sellers, each of the date hereofother parties thereto, and (iii) is enforceable by or against such Seller, and, to the Knowledge of Sellers, each of such other parties thereto in accordance with its terms, subject to the General Enforceability Exceptions. Except as set forth on Schedule 5.10(b), with respect to each such Sold Contract, Sellers have performed in all material respects the obligations required to be performed by Sellers under the Sold Contracts, and no Seller nor, to Sellers’ Knowledge, any other partyparty to the Sold Contract, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company the Sold Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as Neither of the date hereof Sellers nor any modification, waiver of their respective Affiliates has entered into any Material Contract with any customer or termination of any Company Contract. Except as set forth on Section 4.15(c) supplier of the Disclosure Schedule, no Company Contract Polymer Additives Business which is terminable used in or cancelable as a result of held for use in the consummation of Polymer Additives Business but under which the transactions contemplated in this Agreementbenefits and burdens thereof do not inure exclusively to the Polymer Additives Business.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(ass.3(s) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements to which the Company or any of its Subsidiaries Seller is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts providing any agreement (or group of related agreements) for the employment, retention, bonus, severance lease of personal or other service relationship with real property to or from any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000Person;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (iirelated agreements) for the sale by the Company furnishing or any receipt of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and year, result in a material loss to any of Sellers, with respect to the Business, or involve consideration in excess of US $100,00050,000;
(iii) any agreement concerning a partnership, joint venture, cooperative development or other similar arrangement;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of US $50,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible, or property, real or personal;
(v) any agreement concerning confidentiality or noncompetition other than Sellers' standard employee agreement;
(vi) any agreement with any of Stockholders and their Affiliates;
(vii) all partnership any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or joint venture Contractsother material plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) all Contracts any collective bargaining or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearunion contract or agreement;
(ix) all Contracts relating to licenses any written agreement for the employment of Intellectual Property (whether the Company any individual on a full-time, part-time or consulting basis or for any retention bonus, indemnification, severance or any change of its Subsidiaries is the licensor control or licensee thereunder) material to the business of the Companygolden parachute agreement;
(x) all Contracts relating any agreement under which it has advanced or loaned any amount to the future disposition or acquisition any of any business enterprise or any interest in any business enterpriseits directors, officers, and employees;
(xi) all Contracts between any agreement under which the consequences of a default or among (A) the Company or any of its Subsidiaries, termination could have a Material Adverse Effect on the one handbusiness, and (B) any Stockholder (or Holder)financial condition, such Stockholder’s Affiliate (or Holder’s Affiliate)operations, results of operations, or any Related Party (other than future prospects of the Company), on the other handBusiness;
(xii) Contracts pertaining to any agreement for the issuance purchase of debt any machinery or equity capital assets, or the incurrence of any capital expenditure (including, but not limited to, expenditures for the Company construction or material modification of any structure) involving in excess of its SubsidiariesUS $50,000 per agreement;
(xiii) Contracts which are (A) outside the ordinary course of business any purchase order or other agreement for the purchasepurchase of materials, acquisition, sale supplies or disposition services other than in the Ordinary Course of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or propertiesBusiness;
(xiv) all engagement letters with clients any license, distribution, dealership, marketing, sales agent, sales representative, franchise or similar agreements relating to or providing for the marketing and/or sale of the Company products or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiariesservices;
(xv) all Contracts under which the Company any indenture, mortgage, note, bond or other evidence of indebtedness, or any credit or similar agreement; and any guarantee of its Subsidiaries agrees or agreement to indemnify acquire any such obligation of any other Person; andand any letters of credit or performance bonds other than those in favor of Sellers;
(xvi) any agreement which restricts Sellers from entering into any line of business or any agreement which contains geographic restrictions on the ability of Sellers to conduct business activities;
(xvii) any contract, license or other Contract agreement with respect to the Intellectual Property, including any which create obligations to make royalty payments in respect of the Intellectual Property;
(xviii) any contract giving any party the right to renegotiate or require a reduction in price or refund of payments previously made other than in the operation of the Business in the Ordinary Course of Business;
(xix) contracts with any government or government agency or with any Person in connection with such Person's contract with any government or government agency;
(xx) any agreement for the sale of products or services containing warranty or guarantee obligations which represent material deviations from those which are included in the standard terms and conditions of sale in connection with the Business;
(xxi) all contracts relating to the cleanup, abatement or other actions in connection with any Hazardous Material, the remediation of any existing environmental liabilities, violation of any Environmental Laws or relating to the performance of any environmental study or audit; or
(xxii) any other agreement (or group of related agreements) the performance of which involves consideration in excess of US $100,000 per year.
50,000. Sellers have delivered or made available to Buyer a correct and complete copy of each written agreement listed in ss.3(s) of the Disclosure Schedule (ias amended to date) Each Company Contract and a written summary setting forth the terms and conditions of each oral agreement referred to in ss.3(s) of the Disclosure Schedule. With respect to each such agreement, except as set forth in ss.3(s) of the Disclosure Schedule (subject to bankruptcy, insolvency and other laws of general application): (A) the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated hereby (iiincluding the assignments and assumptions referred to in ss.2 above, subject to consent to assignment as identified); (C) neither the Company nor any of its Subsidiaries norSellers are not and, to the Knowledge of the Company as of the date hereofSellers and Stockholders, any other party, party thereto is not in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (D) or loss of no party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contractagreement. Except as set forth on Section 4.15(cprovided in ss.3(s) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result Schedule none of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or Sellers is currently a party to any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which agreement with any of the current or former officers, directors, stockholders, managers, members or employees of Sellers, Stockholders (or Holders) or the Company or any relative or any relation or Affiliate of its Subsidiaries such Persons. IMI is not a party or may be subject or bound (to any agreement other than this Agreement or pursuant to this Agreement)agreements in respect of the Shares.
Appears in 1 contract
Contracts. (aSchedule 4(o) Section 4.15(a) lists all contracts and other agreements to which any of the Disclosure Schedule sets forth a complete and accurate list of each Contract of the following types or having the following terms to which the Company or any of its Subsidiaries Companies is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectivelyparty, the “Company Contracts”):including, without limitation:
(i) all Contracts providing any agreement (or group of related agreements) for the employment, retention, bonus, severance lease of personal property to or other service relationship with from any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000Person;
(ii) all material Contracts any agreement (other than employment contractsor group of related agreements) with any current for the purchase or former officersale of raw materials, directorcommodities, stockholdersupplies, employeeproducts, consultant, agent or other representative personal property, or for . the furnishing or receipt of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling personservices;
(iii) any agreement concerning a partnership or joint venture;
(Aiv) all instruments relating to any agreement (or group of related agreements) under which it has incurred, assumed, or guaranteed any indebtedness for borrowed money, or any note, bond, deed of trust, mortgage, indenture capitalized lease obligation or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or it has imposed a Security Interest on any of its Subsidiaries is a lessor assets, tangible or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) monthsintangible;
(v) all Contracts containing any covenant agreement concerning confidentiality or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiariesnoncompetition;
(vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or agreement with any of its Subsidiaries; the Sellers and (B) notwithstanding (A), all Contracts (i) with material customers any of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000Companies;
(vii) all partnership any profit sharing, stock or joint venture Contractsmembership interest option, stock or membership interest purchase, stock or membership interest appreciation, deferred compensation, severance, or other material plan or arrangement for the benefit of its current or former directors, officers, managers and employees;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearany collective bargaining agreement;
(ix) all Contracts relating to licenses any agreement for the employment of Intellectual Property (whether the Company any individual on a full-time, part-time, consulting, or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Companyother basis;
(x) all Contracts relating any agreement under which it has advanced or loaned any amount to any of its directors, officers, members, managers, stockholders, independent contractors and employees outside the future disposition or acquisition Ordinary Course of any business enterprise or any interest in any business enterpriseBusiness;
(xi) all Contracts between any agreement under which the consequences of a default or among termination could have a material adverse effect on the business, financial condition, operations, results of operations, or future prospects of any of the Companies; or
(xii) any other agreement (or group of related agreements) outside the Ordinary Course of Business. The Companies have delivered to the Buyer a correct and complete copy of each written agreement listed on Schedule 4(o) (as amended to date). Except as otherwise set forth on Schedule 4(c), with respect to each such agreement: (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
(i) Each Company Contract agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable, and (ii) neither in full force and effect on identical terms following the Company nor any of its Subsidiaries nor, to the Knowledge consummation of the Company as of the date hereoftransactions contemplated hereby; (C) to Seller's Knowledge, any other party, no party is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (D) or loss of to Seller's Knowledge, no party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(aSchedule 3.11(a) of the Company Disclosure Schedule sets forth a complete and accurate list Schedules identifies each “Material Contract” of the Target Companies, with each Contract (including any policies or programs which might support a claim of a contractual right) of the following types or having the following terms nature described below being deemed to which the Company or any of its Subsidiaries is constitute a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as “Material Contract” of the date hereof (collectively, the “Company Contracts”):Target Companies:
(i) all Contracts each Company Contract (A) relating to the employment of, or the performance of services by, any employee, consultant or independent contractor providing for annual compensation in excess of $100,000, (B) pursuant to which any of the employmentTarget Companies is or may become obligated to make any severance, retention, bonus, severance termination or other service relationship with similar payment to any current or former employee or director or (C) pursuant to which any of the Target Companies is or may become obligated to make any bonus or similar payment (whether in the form of cash, stock, or other securities but excluding payments constituting base salary) in excess of $25,000 to any current or former employee or director;
(ii) each Company Contract relating to the acquisition, transfer, use, development, sharing or license of any technology or any Proprietary Asset, other than any Contract pursuant to which any such Proprietary Assets are licensed to the Target Companies under any third party “shrink-wrap,” “click through” or other “off-the-shelf” software license generally available to the public and having a value of less than $15,000;
(iii) any Company Contract relating to the acquisition, sale, spinoff or outsourcing of any business unit or material operation or product line;
(iv) each Company Contract that provides for indemnification of any officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) monthsagent;
(v) all Contracts containing each Company Contract imposing any covenant or provision limiting restriction on the freedom right or ability of the any Target Company (A) to compete with, or solicit any customer of, any other Person, (B) to acquire any product or other asset or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with services from any other Person, (C) to solicit, hire or retain any Person as an employee, consultant or requiring exclusive dealings by the Company independent contractor, (D) to develop, sell, supply, distribute, offer, support or service any product or any of its Subsidiariestechnology or other asset to or for any other Person, or (E) to perform services for any other Person;
(vi) each Company Contract creating or involving any agency relationship (including sales representative arrangements), distribution arrangement or franchise relationship;
(vii) each Company Contract (other than Contracts evidencing Company Options) (A) all Contracts for relating to the acquisition, issuance, voting, registration, sale or transfer of any Equity Interests of the Target Companies, (B) providing any Person with any preemptive right, right of participation, right of maintenance or similar right with respect to any Equity Interests of the Target Companies, or (C) providing any of the Target Companies with any right of first refusal with respect to, or right to repurchase or redeem, any Equity Interests of the Target Companies;
(viii) each Company Contract relating to the creation of any Encumbrance with respect to any asset of the Target Companies;
(ix) each Company Contract involving or incorporating any guaranty, pledge, warranty, performance or completion bond, indemnity or similar arrangement;
(x) each Company Contract relating to any currency hedging;
(xi) each Company Contract creating or relating to any partnership or joint venture or any sharing of revenues, profits, losses, costs or liabilities;
(xii) each Company Contract relating to the purchase or sale of materialsany product or other asset by or to, inventoryor the performance of any services by or for, supplies any Related Party;
(xiii) each Company Real Property Lease;
(xiv) each Company Contract (A) imposing any confidentiality obligation on any of the Target Companies or equipment on any other Person (including, without limitation, computer hardware and Softwareother than routine nondisclosure agreements entered into by a Target Company in the ordinary course of business), (B) containing “standstill” or similar provisions, or (C) providing any right of first negotiation, right of first refusal or similar right to any Person;
(xv) each Company Contract with a Governmental Body (other than routine permits and licenses and financing and advisory agreements with municipalities, states, counties, schools, districts, special districts, agencies, political subdivisions, and other governmental entities, in each case in the ordinary course of business);
(xvi) each Company Contract that provides for aggregate payments over the provision course of services, involving annual payments the Contract of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other 100,000 and that has a term of more than Contracts ninety (90) days and that are terminable may not be terminated by a Target Company (without penalty) within ninety (90) days without premium or penalty to after the Company or any delivery of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale a termination notice by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the such Target Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (Bxvii) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) Contract that was entered into outside the ordinary course of business for or was inconsistent with the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves Target Company’s past practices and involving consideration in excess of $100,000 per year25,000;
(xviii) any other Company 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 $50,000 in the aggregate or (B) the purchase or sale of any product, or performance of services by or to any Target Company having a value in excess of $50,000 in the aggregate, in each case outside the ordinary course of business of such Target Company or inconsistent with past practice;
(xix) any Company Contract under which the Merger or any of the Contemplated Transactions would give rise to or expand any rights in favor of, or any obligations on the part of, any Target Company or any other Person;
(xx) any Company Contract that would reasonably be expected to have or result in a material effect on (A) the business, condition, capitalization, assets, Proprietary Assets, liabilities, results of operations or financial performance of any of the Target Companies or (B) the ability of the Company to perform any of its obligations under this Agreement or to consummate any of the Contemplated Transactions; and
(xxi) any other Company Contract, if a breach of such Contract or the termination of such Contract would reasonably be expected to have or result in a Company Material Adverse Effect.
(ib) Each The Company Contract is legal, valid, binding has delivered or made available electronically to Parent accurate and enforceable against the Company or the party to such Company Contract which is a Subsidiary complete copies of the Company, as the case may be, and to the Knowledge all written Material Contracts. Schedule 3.11(b) of the Company as Disclosure Schedules provides an accurate description of the date hereof, against terms of each other party thereto, Material Contract that is not in written form. Each Material Contract identified (or required to be identified) on Schedule 3.11(a) and Schedule 3.11(b) of the Company Disclosure Schedules is valid and in full force and effect, and is enforceable by the applicable Target Company against the other parties thereto, in accordance with its terms, subject to (i) Laws of general application relating to bankruptcy, insolvency, reorganization, moratorium and the enforcement of creditors’ rights generally and (ii) neither the Company nor any rules of its Subsidiaries norLaw governing specific performance, to the Knowledge of the Company as of the date hereof, any injunctive relief and other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contractequitable remedies.
(c) The Company has delivered to Parent complete (i) each of the Material Contracts and accurate copies of each Company Contract through the date hereof performance thereunder by the applicable Target Company, is, and there has been no during the terms thereof, in material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).compliance with all applicable Laws;
Appears in 1 contract
Contracts. (a) Section 4.15(a) 4.16 of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements to which the Company SkateNation or any of its Subsidiaries is a party or by which (together with the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of Ground Leases and the date hereof (collectivelySpace Leases, the “Company "SkateNation Contracts”"):
(ia) all Contracts providing any agreement (or group of related agreements) for the employment, retention, bonus, severance lease of personal property to or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of from any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 50,000 per annum and a term of at least twelve (12) monthsannum;
(vb) all Contracts containing any covenant agreement (or provision limiting the freedom or ability group of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(virelated agreements) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and year, or involve consideration in excess of $100,000;
(viic) all any agreement concerning a partnership or joint venture Contractsventure;
(viiid) all Contracts any agreement (or purchase orders relating to capital expenditures involving total payments group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $50,000 or under which it has imposed a Security Interest on any of its Assets;
(e) any agreement concerning confidentiality or noncompetition, or which otherwise restricts in any material manner the free use by the Company SkateNation and its Subsidiaries of more than $100,000 per yearits Assets or data made available to it in the Ordinary Course of Business;
(ixf) all Contracts relating to licenses of Intellectual Property (whether any agreement with the Company Seller or any of Affiliates thereof (other than SkateNation and its Subsidiaries is the licensor or licensee thereunder) material to the business of the CompanySubsidiaries);
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (Bg) any Stockholder (or Holder)profit sharing, such Stockholder’s Affiliate (or Holder’s Affiliate)stock option, stock purchase, stock appreciation, deferred compensation, severance, or any Related Party (other than material plan or arrangement for the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity benefit of the Company current or former directors, officers, and/or employees of SkateNation or any of its Subsidiaries;
(xiiih) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or propertiescollective bargaining agreement;
(xivi) all engagement letters with clients any written agreement for the employment of the Company any individual on a full-time, part-time, consulting, or other basis providing annual compensation in excess of $25,000 or providing severance benefits;
(j) any agreement under which it has advanced or loaned any amount to any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiariesdirectors, officers, and/or employees;
(xvk) all Contracts any agreement under which the Company consequences of a default or any of its Subsidiaries agrees to indemnify any Person; andtermination could have a Material Adverse Effect;
(xvil) any agreement with any tenant of any space at the Property that involves annual consideration in excess of $10,000;
(m) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.
or that is material to the business of SkateNation or any of its Subsidiaries. The Seller has made available to the Buyer a correct and complete copy of each written agreement (ias amended to date) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary listed in Section 4.16 of the Company, as the case may be, and Disclosure Schedule. With respect to the Knowledge each agreement required to be identified in Section 4.16 of the Company as of Disclosure Schedule: (w) the date hereof, against each other party thereto, and agreement is in full force and effecteffect and, the Seller's Knowledge, is the legal, valid and binding obligation of the parties thereto other than SkateNation or any of its Subsidiaries (iithe "Other Parties") and enforceable against the Other Parties in accordance with its terms, subject to the Remedies Exception; (x) neither the Company SkateNation nor any of its Subsidiaries nor, to the Knowledge Seller's Knowledge, any of the Company as of the date hereof, any other partyOther Parties, is in material breach breach, violation or default, and to Seller's Knowledge, no event has occurred which could constitute (with or without notice or lapse of time or both) both would constitute a material breach breach, violation or default (by SkateNation or give rise to any right of its Subsidiaries, or permit termination, modification, cancellation or accelerationacceleration by the Other Parties, under the agreement; (y) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company neither SkateNation or any of its Subsidiaries or nor, to the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which Seller's Knowledge, any of the Stockholders Other Parties, has repudiated any provision of the agreement and (z) no consent is required of any of the Other Parties by virtue of the execution, delivery or Holders) performance of this Agreement, and the transactions contemplated by this Agreement will not result in the termination or modification of the agreement. No representations or warranties are made in this Section 4.16 with respect to the Ground Leases or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement)Space Leases.
Appears in 1 contract
Contracts. (a) Section 4.15(a4(o) of the Disclosure Schedule sets forth a complete lists the following contracts and accurate list of each Contract other agreements to which any of the following types or having the following terms to which the Company or any of Target and its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00025,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year year, result in a loss to any of the Target and its Subsidiaries, or involve consideration in excess of $100,00025,000;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $25,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any agreement with any of the Sellers and their Affiliates (other than the Target and its Subsidiaries);
(vii) all partnership any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or joint venture Contractsother plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearany collective bargaining agreement;
(ix) all Contracts relating to licenses any agreement for the employment of Intellectual Property (whether the Company any individual on a full-time, part-time, consulting, or any other basis providing annual compensation in excess of its Subsidiaries is the licensor $25,000 or licensee thereunder) material to the business of the Companyproviding severance benefits;
(x) all Contracts relating any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the future disposition or acquisition Ordinary Course of any business enterprise or any interest in any business enterpriseBusiness;
(xi) all Contracts between any agreement under which the consequences of a default or among (A) termination could have an adverse effect on the Company business, financial condition, operations, results of operations, or future prospects of any of the Target and its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;; or
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.
25,000. The Sellers have delivered to the Buyer a correct and complete copy of each written agreement listed in Section 4(o) of the Disclosure Schedule (ias amended to date) Each Company Contract and a written summary setting forth the terms and conditions of each oral agreement referred to in Section 4(o) of the Disclosure Schedule. With respect to each such agreement: (A) the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable, and (ii) neither in full force and effect on identical terms following the Company nor any of its Subsidiaries nor, to the Knowledge consummation of the Company as of the date hereof, any other party, transactions contemplated hereby; (C) no party is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (D) or loss of no party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(a3(p) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements to which the Company or any of its Subsidiaries is a party or by (as to clause (xii)) to which Shareholder is a party:
(i) any agreement (or group of related agreements) for the lease of personal property from any Person providing for lease payments in excess of $25,000 per annum;
(ii) any agreement concerning a partnership or joint venture;
(iii) any agreement (or group of related agreements), other than those related to the Securitization, under which it has created, incurred, assumed or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $100,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(iv) any agreement (other than the Letter of Intent, this Agreement and any related agreement) concerning confidentiality or noncompetition;
(v) any agreement with Shareholder or any relative of Shareholder other than the Insurance Agreement and Option Plan and agreements regarding advances;
(vi) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance or other plan or arrangement for the benefit of its current or former directors, officers or employees other than the Insurance Agreement and Option Plan;
(vii) any agreement for the employment of any individual for a specified term exceeding 30 days on a full-time, part-time, consulting or other basis;
(viii) any agreement under which it has advanced or loaned any amount to any of its directors, officers or employees except advances to Shareholder consistent with prior practice and an advance to Char▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇ approximately $15,000; or
(ix) any agreement under which Shareholder has guaranteed the repayment of any loan or other advance of monies to the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as other obligations of the date hereof (collectively, the “Company Contracts”):
(i) all Contracts providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity Company. Shareholder has delivered to First Sierra a correct and rate of compensation complete copy of each such person and the expiration date of each such Contract being set forth agreement listed in Section 4.15(a3(p) of the Disclosure Schedule). No material default or event that, to with the extent there are continuing passage of time, giving of notice or both, would constitute a material default by the Company which would allow full acceleration of the obligations of the Company or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which shall have occurred and be continuing under any of the foregoing is a controlling person;
agreements referenced in clause (iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company above or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per yearagreement.
(i) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(a) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of the following types or having the following terms to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):
(i) all Contracts providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) 2.19 of the Disclosure Schedule), together with all other Schedules annexed hereto, lists the following contracts and other agreements to the extent there are continuing obligations of which either the Company or its Subsidiaries thereunder are a party as of the date hereof:
(a) any agreement (or group of related agreements) for the lease of personal property to or from any person providing for lease payments in excess of $50,000 per annum or a term of more than one (1) year;
(b) any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which has a term more than 12 months left on its term, or involves unpaid consideration in excess of $50,000;
(iic) all material Contracts (other than employment contracts) with any current partnership or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;joint venture agreement; FILING #0001705193 PG 36 OF 193 VOL B-00116 FILED 03/20/1997 03:00 PM PAGE 03402 SECRETARY OF THE STATE CONNECTICUT SECRETARY OF THE STATE
(iiid) any agreement (Aor group of related agreements) all instruments relating to under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any notecapitalized lease obligation, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,00025,000, or under which it has imposed a security interest on any of its assets, tangible or intangible;
(ive) all leaseany agreement concerning confidentiality or noncompetition;
(f) any agreement with any of the Stockholders or their affiliates (as such terms defined in Rule 144 under the Securities Act);
(g) any profit sharing, subleasestock option, rentalstock purchase, license stock appreciation, deferred compensation, severance, or other Contracts material plan or arrangement for the benefit of its current or former directors, officers, and employees;
(h) any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis (other than agreements which are terminable without causing a Material Adverse Effect);
(i) any agreement under which the Company consequences of a default or any of its Subsidiaries is termination would have a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;Material Adverse Effect; or
(vj) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person agreement (or requiring exclusive dealings by the Company or any group of its Subsidiaries;
(virelated agreements) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year100,000.
(i) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(a3(n) of the Disclosure Schedule sets forth lists the following contracts and other agreements included in the Acquired Assets, and the Seller is not a complete party to any other contract or other agreement of a type listed below and accurate list of each Contract which relates primarily to the business of the following types or having the following terms to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):Division:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00050,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and or involve consideration in excess of $100,00050,000, or, in the case of any contract for the provision of products or services to customers, is reasonably expected to result in a loss to the Seller;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which the Seller has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $50,000 or under which it has imposed or agreed to the imposition of a Security Interest (other than a Permitted Lien) on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality (other than in the Ordinary Course of Business) or noncompetition;
(vi) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of the current or former Division Employees;
(vii) all partnership any collective bargaining agreement pertaining in whole or joint venture Contractspart to any Division Employees;
(viii) all Contracts any agreement for the employment of any individual on a full-time, part-time, consulting, or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more other basis, other than $100,000 per yearan at-will employment arrangement, or providing severance benefits;
(ix) all Contracts relating any agreement under which it has advanced or loaned any amount which has not been repaid in full to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the CompanyDivision Employees;
(x) all Contracts relating any agreement under which the consequences of a default or termination could reasonably be expected to have a Material Adverse Effect on the future disposition or acquisition of any business enterprise or any interest in any business enterpriseDivision;
(xi) all Contracts between any marketing, partnership, or among co-branding or other agreements with internet portals or other high-traffic internet sites; or
(xii) any other agreement (or group of related agreements) the performance of which involves consideration valued in excess of $50,000. The Seller has delivered to the Buyer a correct and complete copy of each written agreement listed in Section 3(n) of the Disclosure Schedule (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Section 3(n) of the Disclosure Schedule. With respect to each such agreement: (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
(i) Each Company Contract agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect; (B) the agreement will not cease to be legal, valid, binding, enforceable, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge in full force and effect on substantially similar terms as a result of the Company as consummation of the date hereof, any other party, transactions contemplated hereby (including the assignments and assumptions referred to in Section 2 above); (C) no party is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (D) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as Knowledge of the date hereof Seller, no party has repudiated any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) provision of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(a3(h) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements to which the Company or any of its Subsidiaries Seller is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,0001,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve year, result in a material loss to the Seller, or involves consideration in excess of $100,0001,000;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness, or any capitalized lease obligation, in excess of $1,000 or under which it has imposed a Lien on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or non-competition;
(vi) any agreement involving any of the Seller’s shareholders and their Affiliates (other than the Seller);
(vii) all partnership any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or joint venture Contractsother plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearany collective bargaining agreement;
(ix) all Contracts relating to licenses any agreement for the employment of Intellectual Property (whether the Company any individual on a full-time, part-time, consulting, or any other basis providing annual compensation in excess of its Subsidiaries is the licensor $10,000 or licensee thereunder) material to the business of the Companyproviding severance benefits;
(x) all Contracts relating any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the future disposition or acquisition Ordinary Course of any business enterprise or any interest in any business enterpriseBusiness;
(xi) all Contracts between any agreement under which the consequences of a default or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other handtermination could have a Material Adverse Effect;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiariesagreement under which it has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(xiii) Contracts any settlement, conciliation or similar agreement with any Governmental Entity or which are (A) outside the ordinary course will involve payment after of business for the purchase, acquisition, sale or disposition consideration in excess of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties$1,000;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries agreement under which the Seller has advanced or loaned any amount is or may become payable to other Person amounts in the Company or any of its Subsidiaries;aggregate exceeding $1,000; or
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.
1,000. The Seller has delivered to Buyer a correct and complete copy of each written agreement listed (ior required to be listed) Each Company Contract in Section 3(h) of the Disclosure Schedule and a written summary setting forth the terms and conditions of each oral agreement listed (or required to be listed) in Section 3(h) of the Disclosure Schedule. With respect to each such agreement: (A) the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable, and (ii) neither in full force and effect on identical terms following the Company nor any of its Subsidiaries nor, to the Knowledge consummation of the Company as of transactions contemplated hereby (including the date hereof, any other party, assignments and assumptions referred to in Section 2 above); (C) no party is in material breach or default, and no event has occurred which could constitute (that with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (D) or loss of no party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Asset Purchase Agreement (Options Media Group Holdings, Inc.)
Contracts. (a) Section 4.15(a) Except as set forth on Schedule 3.14(a), none of the Disclosure Schedule sets forth a complete and accurate list of each Contract of the following types Companies or having the following terms to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):to any:
(i) all Contracts providing for the employmentwith any Affiliate or any partnership, retentioncorporation, bonus, severance joint venture or other service relationship with entity in which any of current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate partner of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the any Company or its Subsidiaries thereunder in excess of $50,000Subsidiary has a direct or indirect interest;
(ii) all material Contracts (other than employment contracts) relating to any collective bargaining agreement or similar agreement or Contracts with any current or former officerlabor union, directorworks council, stockholder, employee, consultant, agent labor organization or other employee representative or a group of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling personemployees;
(iii) (A) all instruments relating to indebtedness for borrowed moneybonus, any noteincentive, bondpension, deed profit sharing, retirement or other form of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000deferred compensation plan;
(iv) all leaseContracts for the employment or engagement of, subleaseor any confidentiality, rentalnon-competition or non-solicitation agreement with, license any officer, director, individual employee (including temporary and seasonal), independent contractor or other Person on a full-time or consulting basis;
(v) Contracts for the payment of any amount or provision of any benefit to any officer, director, independent contractor or employee on account of separation from service or in connection with the transactions contemplated by this Agreement;
(vi) Contracts under which the any Company or Subsidiary has advanced or loaned any amount to any of its Subsidiaries directors, officers, or employees;
(vii) Contracts with a sales agency, sales representation, distributorship, dealer, broker, franchise or similar agreement that is not terminable by a lessor Company or lessee Subsidiary without penalty on thirty (30) days’ notice or less;
(viii) Contracts granting a power of attorney or other agency on behalf of any real property Company or the guarantee Subsidiary to any Person;
(ix) Contracts which require payments by any party thereto in excess of $50,000 in any such lease, sublease, rental twelve (12)-month period or other Contracts providing for lease or rental pursuant to which any party thereto has made payments in excess of $100,000 per annum and a term 50,000 during the twelve (12)-month period ending on the date hereof;
(x) Contracts for capital expenditures in excess of at least $50,000 or extending for more than twelve (12) months;
(vxi) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materialslease, inventory, supplies use or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers occupancy of the business of Owned Real Property or the Company Leased Real Property by or to any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other handthird party;
(xii) Contracts pertaining to involving the issuance payment or receipt of debt royalties by the Companies or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are with respect to Intellectual Property (including Contracts with current or former employees, consultants or contractors regarding the transfer or the non-disclosure of any of the Intellectual Property, and any settlement, consent, concurrent-use agreement, or other Contract that restricts the use of the Intellectual Property, but excluding Standard Software Contracts);
(xiv) Contracts for (A) outside the sale of any assets or properties of a Company or Subsidiary other than in the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients properties of the Company Companies or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts relating to the acquisition by a Company or Subsidiary of any operating business or the assets or capital stock of any other Person;
(xvi) Joint venture, partnership, limited liability company, strategic alliance or similar Contracts relating to the assets, properties or businesses of any Company or Subsidiary or by or to which any Company or Subsidiary or any of their assets or properties are bound or subject;
(xvii) Contracts under which the any Company or any of its Subsidiaries Subsidiary agrees to indemnify any party, to share Tax liability of any party, or to refrain from competing with any party;
(xviii) Contracts relating to Indebtedness of the Companies and Subsidiaries, including operating leases;
(xix) Contracts for the guaranty of any obligation for borrowed money or other material guaranty;
(xx) Contracts that limit the freedom of any Company or Subsidiary to compete in any line of business anywhere in the world, including by limiting the ability of such Company or Subsidiary to (A) compete with any other Person; and(B) to acquire any product or other asset or any services from any other Person; (C) to solicit, hire or retain any Person as an employee, consultant or independent contractor; (D) to sell goods to or perform services for any other Person; or (E) to transact business or deal in any other matter with any other Person;
(xvixxi) Contracts entered into other than in the ordinary course of business that contain or provide for an express undertaking by a Company or Subsidiary to be responsible for consequential, incidental or punitive damages;
(xxii) Contracts with the customers and suppliers, except those listed on Schedule 3.21 and Schedule 3.22;
(xxiii) any Contract providing for a Company or Subsidiary to make any capital contribution to, or other Contract which involves consideration in excess of $100,000 per year.investment in, any Person, other than a Company or Subsidiary; or
(ixxiv) other Material Contracts not made in the ordinary course of business. Each Company Contract has delivered or made available to the Buyer true, correct and complete copies of all Material Contracts (as defined below), together with all modifications, addenda, amendments, purchase orders, works order, exhibits, annexes and supplements thereto or thereunder. Each of the Contracts listed or required to be listed on Schedule 3.14(a) hereto (collectively, the “Material Contracts” and each a “Material Contract”), is legal, valid, binding binding, enforceable and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, effect and (ii) neither will continue to be so on identical terms immediately following the Company nor Closing. None of the Companies or Subsidiaries is in breach or default of any of its Subsidiaries the provisions of any Material Contract, nor, to the Knowledge knowledge of the Company as of Companies or the date hereofSellers, is any other party, is party to any Material Contract in material breach or defaultdefault thereunder, and no nor does any event has occurred or condition exist which could constitute (with or without notice or lapse the passage of time or both) both would constitute a material breach default thereunder by such Company or Subsidiary or a material default (thereunder by any third party. Each Company and Subsidiary has in all material respects performed all obligations required to be performed by it to date under each Material Contract, and, to the knowledge of the Companies or give rise the Sellers, no event or condition exists that is reasonably likely to any right make the Companies or Subsidiaries unable to perform, or to interfere with such Company’s or Subsidiaries’ performance of termination, modification, cancellation or acceleration) or loss of any benefits future obligations under any Company Material Contract.
(cb) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure ScheduleSchedule 3.14(b), no Company Contract approval or consent of, or notice to, any Person is terminable needed in order that the contracts listed or cancelable as a result of required to be listed on Schedule 3.14(a) hereto and other Schedules hereto continue in full force and effect following the consummation of the transactions contemplated in by this Agreement.
(d) There are Agreement and the Ancillary Agreements, and no non-competition Material Contract includes any provision the effect of which may be to enlarge or non-solicitation agreements or accelerate any similar agreements or arrangements that could restrict or hinder the operations or conduct obligations of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (Companies or Holders) Subsidiaries thereunder or give additional rights to any other party thereto or will in any other way be affected by, or terminate or lapse by reason of, the Company or any of its Subsidiaries is a party or may be subject or bound (other than transactions contemplated by this Agreement and the Ancillary Agreements. Each such approval or pursuant consent set forth on Schedule 3.14(b) is referred to this Agreement)herein as a “Required Consent.”
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Arcosa, Inc.)
Contracts. (a) Section 4.15(a) 2.15 of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types agreements (oral or having the following terms written) to which the any Target Company or any of its Subsidiaries Target Subsidiary is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):of this Agreement:
(i) all Contracts providing any agreement for the employmentlicensing or production of programming, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000including promotional materials;
(ii) all material Contracts (any agreement with respect to the future broadcasting, sale, placement or reservation of advertising, including agreements with respect to the placement of advertising by agencies and other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling personthird parties;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating (or group of related agreements) for the lease of personal property from or to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity third parties providing for lease payments in excess of $100,000the equivalent of US$100,000 per annum or having a remaining term longer than twelve months;
(iv) all lease, sublease, rental, license any agreement (or other Contracts under which group of related agreements) for the Company purchase or any sale of its Subsidiaries is a lessor products or lessee for the furnishing or receipt of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) services (A) all Contracts which calls for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one year, (1B) year and involve consideration which involves more than the sum of the equivalent of US$150,000, or (C) in excess which each Target Company or any Target Subsidiary has agreed to purchase goods or services exclusively from a certain party;
(v) any agreement concerning the establishment or operation of $100,000a partnership, joint venture or limited liability company;
(vi) any agreement (or group of related agreements) under which a Target Company or Target Subsidiary has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than the equivalent of US$100,000 or under which a Target Company or Target Subsidiary has imposed a Security Interest on any of its assets, tangible or intangible;
(vii) all partnership any agreement for the disposition of any portion of the assets or joint venture Contractsbusiness of a Target Company or Target Subsidiary other than in the Ordinary Course of Business or any agreement for the acquisition of the assets or business of any other entity;
(viii) all Contracts or purchase orders relating to capital expenditures any confidentiality agreement and any other agreement involving total payments by the Company and its Subsidiaries of more than $the equivalent of US$100,000 per yearand that imposes obligations of confidentiality;
(ix) all Contracts relating to licenses any employment or consulting agreement with any employee of Intellectual Property (whether the a Target Company or Target Subsidiary with any annual gross compensation (including commissions) of its Subsidiaries is at least the licensor equivalent of US$100,000 or licensee thereunder) material to the business of the Companya termination or notice period longer than three months;
(x) all Contracts relating to the future disposition any agreement (other than employment contracts or acquisition benefit plans) involving any current or former officer, director or shareholder of any business enterprise a Target Company or Target Subsidiary or any interest in any business enterpriseaffiliate thereof;
(xi) all Contracts between any agreement under which the consequences of a default or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other handearly termination would reasonably be expected to have a Target Material Adverse Effect;
(xii) Contracts pertaining to any indemnification agreement and any other agreement involving more than the issuance equivalent of debt or equity of the US$100,000 that contains any provisions requiring a Target Company or Target Subsidiary to indemnify any of its Subsidiariesother party;
(xiii) Contracts which are (A) outside any agreement that would reasonably be expected to have the ordinary course effect of prohibiting or impairing in any material respect the conduct of the business for of a Target Company or Target Subsidiary or of the purchase, acquisition, sale Purchaser or disposition any of any assets or properties or (B) for the grant their respective Subsidiaries as currently conducted and as currently proposed to any Person of any option or preferential rights to purchase any assets or propertiesbe conducted;
(xiv) all engagement letters with clients any agreement under which a Target Company or Target Subsidiary is restricted from conducting its business in any geographic area of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;Russian Federation; and
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration agreement (or group of related agreements) either involving more than the equivalent of US$150,000 or not entered into in excess the Ordinary Course of $100,000 per yearthe Business.
(b) The Seller has made available to the Purchaser a complete and accurate copy of each agreement listed in Section 2.15 of the Disclosure Schedule. With respect to each agreement so listed: (i) Each Company Contract the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and ; (ii) each agreement has, if required by applicable law, been duly registered or is in the process of being timely registered with the relevant Governmental Entities; and (iii) neither the any Target Company nor any of its Subsidiaries Target Subsidiary nor, to the Knowledge knowledge of the Company as of the date hereofWarrantors, any other party, is in material breach or defaultviolation of, or default under, any such agreement, and no event has occurred which could constitute (occurred, is pending or, to the knowledge of the Warrantors, is threatened, which, after the giving of notice, with or without notice or lapse of time time, or both) otherwise, would constitute a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any by a Target Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through Target Subsidiary or, to the date hereof. The Company is not contemplating as knowledge of the date hereof Warrantors, any modificationother party under such agreement, waiver except, in each case, for breaches, violations or termination defaults which, individually or in the aggregate, have not had and would not reasonably be expected to have a Target Material Adverse Effect. Without limiting the generality of any Company Contract. Except as set forth on the foregoing, Section 4.15(c) 2.15 of the Disclosure Schedule, no Company Contract is terminable Schedule identifies each listed agreement that contains a change of control or cancelable as a result of the consummation of similar provision that will be triggered by this Agreement or the transactions contemplated in this Agreementhereby.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Purchase Agreement (CTC Media, Inc.)
Contracts. (a) Section 4.15(a) 5.17 of the SIS Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts, agreements, commitments and other arrangements to which the Company or any of its Subsidiaries SIS is a party or by which the Company SIS or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):bound:
(ia) all Contracts providing any agreement (or group of related agreements) for the employment, retention, bonus, severance lease of personal property to or other service relationship with from any current or former officer, director, employee, consultant or other person requiring compensation Person which involves the payment by the Company (the name, position or capacity and rate SIS of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of more than $50,00010,000 per year;
(iib) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and or involve consideration in excess of $100,00010,000;
(viic) all partnership any agreement for the purchase of supplies, components, products or joint venture Contracts;
(viii) all Contracts services from single source suppliers, custom manufacturers or purchase orders relating to capital expenditures involving total payments subcontractors which involves the payment by the Company and its Subsidiaries SIS of more than $100,000 10,000 per year;
(ixd) all Contracts relating to licenses any agreement concerning a partnership or joint venture;
(e) any agreement (or group of Intellectual Property related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money or any capitalized lease obligation in excess of $10,000 or under which a Security Interest has been imposed on any of its assets, tangible or intangible;
(whether the Company f) any agreement concerning noncompetition or restraint of trade or any agreement on currently active projects which involves confidentiality;
(g) any agreement with any SIS shareholder or any of its Subsidiaries is the licensor such shareholder's Affiliates (other than SIS) or licensee thereunder) material to the business with any Affiliate of the CompanySIS;
(xh) all Contracts relating to any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the future disposition benefit of its current or acquisition of any business enterprise former directors, officers or any interest in any business enterpriseemployees;
(xii) all Contracts between any collective bargaining agreement;
(j) any agreement for the employment of any individual on a full-time, part-time, consulting, or among other basis;
(Ak) the Company any agreement under which it has advanced or loaned any amount to any of its Subsidiariesdirectors, on the one handofficers, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other handemployees;
(xiil) Contracts pertaining any agreement pursuant to the issuance which SIS is obligated to provide services, maintenance, support or training which involves payments to SIS of debt or equity of the Company or any of its Subsidiariesmore than $50,000 per year;
(xiiim) Contracts which are (A) outside the ordinary course any standard form agreement used by SIS, including, but not limited to, any purchase order, statement of business for the purchasestandard terms and conditions of sale, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Personemployment offer letter; and
(xvin) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.
10,000 or which is expected to continue for more than six (i6) Each Company Contract months from the date hereof. SIS has delivered to Aspec a correct and complete copy of each written agreement listed in Section 5.17 of the SIS Disclosure Schedule (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Section 5.17 of the SIS Disclosure Schedule. With respect to each such agreement: (A) the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries noreffect in all respects against SIS and, to the Knowledge knowledge of SIS, the Company as other parties thereto; (B) SIS is not and, to the knowledge of the date hereofSIS, any no other party, party is in material breach or default, and no event has occurred occurred, which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; (C) or loss SIS has not and, to the knowledge of SIS, no other party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof agreement; and (D) SIS does not have any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of reason to believe that the Disclosure Schedule, no Company Contract is terminable or cancelable as service called for thereunder cannot be supplied in accordance with its terms and without resulting in a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or loss to any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement)SIS.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Aspec Technology Inc)
Contracts. (a) Section 4.15(a6(t) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types contracts and other agreements, written or having the following terms oral, to which the Company or any of its Subsidiaries Seller is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts providing any agreement (or group of related agreements) for the employment, retention, bonus, severance lease of personal property to or other service relationship with from any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000Person;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one year;
(1iii) year any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any Indebtedness, or under which it has imposed a Lien on any of its assets, tangible or intangible;
(v) any agreement concerning non-disclosure, confidentiality or non-competition;
(vi) any agreement between Seller and involve consideration in excess any of $100,000its Affiliates;
(vii) all partnership any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or joint venture Contractsother material plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) all Contracts excluding any Employee Benefit Plans, any agreement for the employment of any individual on a full-time, part-time, consulting, or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearother basis or providing severance benefits;
(ix) all Contracts relating any agreement under which it has advanced or loaned any amount to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Companydirectors, officers, and employees;
(x) all Contracts relating to any agreement under which the future disposition consequences of a default or acquisition of any business enterprise or any interest in any business enterprisetermination could have a Material Adverse Effect;
(xi) all Contracts between any settlement, conciliation or among similar agreement; or
(xii) any agreement under which Seller has advanced or loaned any amount to any other Person. Seller has delivered to Buyer a true, complete and correct copy of each written agreement listed in Section 6(t) of the Disclosure Schedule (as amended to date) and a written summary setting forth the material terms and conditions of each oral agreement referred to in Section 6(t) of the Disclosure Schedule. With respect to each such agreement: (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
(i) Each Company Contract agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and effect in all respects; (iiB) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, no party is in material breach or default, and no event has occurred which could constitute (that with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (C) no party has repudiated any provision of or loss of any benefits under any Company Contractterminated the agreement.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(a) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of the following types or having the following terms to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):
(i) all Contracts providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations 3.16 of the Company or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts (Disclosure Schedule lists the following contracts and other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in agreements to which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, Company and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor party:
(a) any agreement (or lessee group of related agreements) for the lease of personal property to or from any real property or the guarantee of any such lease, sublease, rental or other Contracts person providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months50,000 in any one year;
(vb) all Contracts containing any covenant agreement (or provision limiting the freedom or ability group of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(virelated agreements) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration which in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total each case provides for aggregate payments by the Company and its Subsidiaries of more than $100,000 per 50,000 in any one year;
(ixc) all Contracts relating to licenses any agreement concerning a partnership or joint venture;
(d) any agreement (or group of Intellectual Property (whether the Company related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness or under which it has imposed a Lien on any of its Subsidiaries is the licensor assets, tangible or licensee thereunder) material to the business of the Companyintangible;
(xe) all Contracts any agreement concerning confidentiality or noncompetition, other than standard form non-disclosure agreements with the Company's customers, consultants or employees;
(f) any agreement relating to the future disposition Company and the Company Subsidiaries, their assets, liabilities and business, or acquisition relating to shares of the Company Common Stock between or among the Company, any business enterprise or of the Company Subsidiaries and any interest in any business enterpriseof their affiliates;
(xig) all Contracts between any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or among (A) other plan or arrangement for the Company or any benefit of its Subsidiariescurrent or former directors, on the one handofficers, and employees;
(Bh) any Stockholder collective bargaining agreement;
(i) any agreement providing for the employment or Holder)consultancy with any individual on a full-time, such Stockholder’s Affiliate (part-time, consulting or Holder’s Affiliate), other basis or any Related Party providing severance or retirement benefits (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside billable consulting agreements entered into in the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or propertiesbusiness);
(xivj) all engagement letters with clients of the Company any agreement under which it has advanced or loaned any amount to any of its Subsidiaries under which any amount is shareholders, affiliates, directors, officers, or may become payable to employees other than in the Company or any ordinary course of its Subsidiariesbusiness;
(xvk) all Contracts any agreement under which the consequences of a default or termination could have a Company or any of its Subsidiaries agrees to indemnify any PersonMaterial Adverse Effect; andor
(xvil) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.
(i) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) 100,000. The Company has delivered to Parent complete and accurate copies Sub a copy of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as written agreement listed in Section 3.16 of the date hereof any modification, waiver or termination Company Disclosure Schedule that is correct and complete in all material respects and a written summary setting forth the material terms and conditions of any each oral agreement referred to in Section 3.15 of the Company ContractDisclosure Schedule. Except as set forth on disclosed in Section 4.15(c) 3.15 of the Company Disclosure Schedule, no Company Contract with respect to each such agreement: (i) the agreement is terminable or cancelable as a result of legal, valid, binding, enforceable, and in full force and effect in all material respects; (ii) the agreement will continue to be legal, valid, binding, enforceable, and in full force and effect in all material respects on identical terms following the consummation of the transactions contemplated in this Agreement.
hereby; (diii) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder to the operations or conduct knowledge of the business Company, no party is in breach or default, and to the knowledge of the Company Company, no event has occurred which with notice or lapse of time would constitute a material breach or default, or permit termination, modification, or acceleration, under the agreement; and (iv) no party has repudiated any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any material provision of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement)agreement.
Appears in 1 contract
Sources: Merger Agreement (Technisource Inc)
Contracts. (a) Section 4.15(a) 7.15 of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms material contracts and other material agreements to which the Company DC or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(ia) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00010,000 per annum;
(iib) all material Contracts (other than employment contracts) with any current agreement concerning a partnership or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling personjoint venture;
(iiic) any agreement (Aor group of related agreements) all instruments relating to under which it has created, incurred, assumed or guaranteed any indebtedness for borrowed money, or any notecapitalized lease obligation or under which a Security Interest has been imposed on any of its assets, bond, deed of trust, mortgage, indenture tangible or agreement to borrow money, and intangible;
(d) any agreement relating to the extension of credit concerning confidentiality or the granting of a Lien other than Permitted Liens, or noncompetition;
(Be) any Contract of guarantee of credit in favor agreement with any Shareholders or any Affiliate of any Person of the Shareholders;
(f) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance or entity other material plan or arrangement for the benefit of its current or former directors, officers and employees;
(g) any agreement for the employment of any individual on a full-time, part-time, consulting or other basis providing annual compensation in excess of $100,00050,000 or providing severance benefits;
(ivh) all leaseany agreement under which it has borrowed, subleaseadvanced or loaned any amount to any of its directors, rental, license officers or other Contracts employees;
(i) any agreement under which the Company consequences of a default or any of its Subsidiaries is termination could reasonably be expected to have a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company Material Adverse Effect on DC or any of its Subsidiaries;
(vij) (A) all Contracts for the purchase of materials, inventory, supplies any agreements with employees or equipment (including, without limitation, computer hardware and Software), or consultants for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation material goods or redetermination provisions, services other than Contracts that are terminable within ninety on arms-length terms and in the Ordinary Course of Business; or
(90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (ik) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating respect to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among each such agreement: (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
(i) Each Company Contract agreement is legal, valid, binding binding, enforceable and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable, and in full force and effect on substantially identical terms following the consummation of the transactions contemplated hereby; (iiC) neither the Company DC nor any of its Subsidiaries nor, to the Knowledge of the Company as DC any of the date hereofits Subsidiaries, any other partyparty thereto, (i) is in material breach or default, and (ii) no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (by, or give rise to any right of permit termination, modificationmodification or acceleration under the agreement, cancellation except for such breach or accelerationdefault in (i) or loss (ii) above which could not reasonably be expected to have a Material Adverse Effect; and (D) no party has repudiated any provision of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereofagreement. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated described herein will not affect any of the agreements disclosed herein in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements a manner that could restrict or hinder the operations or conduct of the business of the Company reasonably be expected to have a Material Adverse Effect on DC or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement)Subsidiaries.
Appears in 1 contract
Contracts. (a) Section 4.15(a) 4.16 of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements to which the Company or any of its Subsidiaries ▇▇▇▇▇ is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(ia) all Contracts providing any agreement (or group of related agreements) for the employment, retention, bonus, severance lease of personal property to or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of from any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) monthsannum;
(vb) all Contracts containing any covenant agreement (or provision limiting the freedom or ability group of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(virelated agreements) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and year, or involve consideration in excess of $100,000200,000;
(viic) all any agreement concerning a partnership or joint venture Contractsventure;
(viiid) all Contracts any agreement (or purchase orders relating to capital expenditures involving total payments by the Company and group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $50,000 or under which it has imposed a Security Interest on any of its Subsidiaries of more than $100,000 per yearassets, tangible or intangible;
(ixe) all Contracts relating any agreement concerning confidentiality or noncompetition, or which otherwise restricts in any material manner the free use by ▇▇▇▇▇ of its assets or data made available to licenses it in the Ordinary Course of Intellectual Property Business;
(whether f) any agreement with any of the Company Seller, any Seller Stockholder, or any Affiliates thereof (other than ▇▇▇▇▇);
(g) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the benefit of ▇▇▇▇▇'▇ current or former directors, officers, and employees, or for which ▇▇▇▇▇ may otherwise be solely or jointly liable;
(h) any collective bargaining agreement;
(i) any agreement for the employment of any individual on a full- time, part-time, consulting, or other basis providing annual compensation in excess of $50,000 or providing severance benefits;
(j) any agreement under which it has advanced or loaned any amount to any of its Subsidiaries is directors, officers, and employees outside the licensor or licensee thereunder) material to the business Ordinary Course of the CompanyBusiness;
(xk) all Contracts relating to any agreement under which the consequences of a default or termination could have a material adverse effect on the business, financial condition, operations, results of operations, or future disposition or acquisition prospects of any business enterprise or any interest in any business enterprise▇▇▇▇▇;
(xil) all Contracts between contracts to which the Seller or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party Affiliates (other than the Company), on the other hand;
(xii▇▇▇▇▇) Contracts pertaining is a party and which provides a material benefit or detriment to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person▇▇▇▇▇; and
(xvim) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.
200,000. The Seller has delivered to the Buyer a correct and complete copy of each written agreement (ias amended to date) Each Company Contract listed in Section 4.16 of the Disclosure Schedule. With respect to each agreement required to be identified in Section 4.16 of the Disclosure Schedule: (w) the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect; (x) the agreement will continue to be legal, valid, binding, enforceable, and (ii) neither in full force and effect on identical terms following the Company nor any of its Subsidiaries nor, to the Knowledge consummation of the Company as of the date hereof, any other party, transactions contemplated hereby; (y) no party is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (z) neither the Seller nor ▇▇▇▇▇ nor, to ▇▇▇▇▇'▇ or loss of the Seller's Knowledge, any benefits under other party has repudiated any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Stock Purchase Agreement (New England Business Service Inc)
Contracts. (a) Section 4.15(a2.2(i) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements to which the Company or any of its Subsidiaries Subsidiary is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts providing for the employment, retention, bonus, severance or other service relationship agreements with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations customers of the Company or its Subsidiaries thereunder such Subsidiary providing for revenue or payments in excess of $50,00025,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current agreements or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which leases relating to any of the foregoing is a controlling personFacilities;
(iii) all agreements (Aor groups of related agreements) all instruments relating for the lease of personal property to indebtedness for borrowed money, or from any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person person or entity providing for lease payments in excess of $100,00025,000 per annum;
(iv) all lease, sublease, rental, license agreements (or other Contracts under which the Company or any groups of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12related agreements) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and year, result in a loss to the Company or such Subsidiary, or involve consideration in excess of $100,00025,000;
(v) all agreements concerning partnerships or joint ventures;
(vi) all agreements (or groups of related agreements) under which the Company or any Subsidiary has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, under which it has imposed a Lien on any of its assets, tangible or intangible;
(vii) all partnership agreements concerning confidentiality or joint venture Contractsnoncompetition;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by agreement between the Company (or any Subsidiary) and its Subsidiaries any of more than $100,000 per yearthe Sellers, any of the Sellers' family members and/or any entity controlled, directly or indirectly by, any of the Sellers or by any of the Sellers family members ("Affiliates");
(ix) all Contracts relating to licenses profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance or other plans or arrangements for the benefit of Intellectual Property (whether the current or former directors, officers, and/or employees of the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the CompanySubsidiaries;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprisecollective bargaining agreements;
(xi) all Contracts between or among (A) agreements for the Company or employment of any of its Subsidiariesindividual on a full-time, on the one handpart-time, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate)consulting, or any Related Party (other than the Company), on the other handbasis providing annual compensation in excess of $25,000 or providing severance benefits;
(xii) Contracts pertaining to the issuance of debt or equity of all agreements under which the Company or any of its Subsidiaries;
(xiii) Contracts which are Subsidiary has (A) advanced or loaned any amount to any of its or their directors, officers or employees outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant advanced or loaned any amount to any Person other person or entity;
(xiii) all agreements under which the consequences of any option a default or preferential rights to purchase any assets or propertiestermination could have a Material Adverse Effect);
(xiv) all engagement letters with clients sales agreements the performance of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.25,000; and
(ixv) Each all other agreements (or groups of related agreements) the performance of which involves consideration in excess of $25,000. The Company Contract has made available to the Buyer a correct and complete copy of each written agreement (as amended to date) listed in Section 2.2(i) of the Disclosure Schedule and a written summary setting forth the terms and conditions of each oral agreement referred to in Section 2.2(i) of the Disclosure Schedule. With respect to each such agreement: (w) the agreement is legal, valid, binding binding, enforceable and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect; (x) the agreement will continue to be legal, valid, binding, enforceable and (ii) neither in full force and effect on identical terms following the Company nor any of its Subsidiaries nor, to the Knowledge consummation of the Company as of the date hereof, any other party, transactions contemplated hereby; (y) no party is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (z) no party has repudiated any provision of the agreement. No such agreement requires the consent or loss authorization of any benefits under any Company Contract.
(c) The Company has delivered third party to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementhereby.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Share Exchange Agreement (Greenman Technologies Inc)
Contracts. (a) Section 4.15(a4(p) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements to which the either Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00025,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year year, result in a material loss to any of the Companies and its Subsidiaries, or involve consideration in excess of $100,00025,000;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $25,000 or under which it has imposed a Lien on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any agreement with any of Sellers and their Affiliates (other than one of the Companies and its Subsidiaries);
(vii) all partnership any profit sharing, interest option, interest purchase, interest appreciation, deferred compensation, severance, or joint venture Contractsother material plan or arrangement for the benefit of its current or former members, managers, officers, and employees;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearany collective bargaining agreement;
(ix) all Contracts relating any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis providing annual compensation in excess of $50,000 or providing severance benefits;
(x) any agreement under which it has advanced or loaned any amount to licenses any of Intellectual Property its members, managers, officers, or employees outside the Ordinary Course of Business;
(whether xi) any agreement under which the consequences of a default or termination could have a Material Adverse Effect;
(xii) any agreement under which either Company or any of its Subsidiaries is has advanced or loaned any other Person amounts in the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;aggregate exceeding $25,000; or
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.
25,000. Sellers have delivered to Buyer a correct and complete copy of each written agreement (ias amended to date) Each Company Contract listed in Section 4(p) of the Disclosure Schedule. With respect to each such agreement: (A) the agreement is legal, valid, binding binding, enforceable, and enforceable against in full force and effect; (B) the Company or agreement will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the party to such Company Contract which is a Subsidiary consummation of the Company, as the case may betransactions contemplated hereby; (C) no party is in breach or default, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and Sellers no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (D) or loss of no party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Steakhouse Partners Inc)
Contracts. (a) Except for the Contracts disclosed pursuant to Section 4.15(a) of the Disclosure 2.13, Schedule sets forth a complete and accurate list of each Contract of 2.14 lists the following types or having the following terms Contracts to which the Company or any of its Subsidiaries is currently a party or by is subject to and which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound have not, as of the date hereof (collectivelyhereof, the “Company Contracts”):been fully performed:
(ia) all Contracts providing any agreement (or group of related agreements) for the employmentpurchase of inventory, retentionproducts, bonusmachinery, severance equipment or other service relationship with any current personal property or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liensreal property, or (B) any Contract for the furnishing or receipt of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental services requiring payments in excess of $100,000 50,000 per annum and a term of at least twelve (12) monthsyear;
(vb) all Contracts containing any covenant Contract (or provision limiting group of related Contracts) for the freedom consignment or ability lease of the Company machinery, equipment or other personal property or real property to or from any Person requiring payments in excess of $50,000 per year;
(c) any capitalized lease, pledge, conditional sale or title retention agreement;
(d) any agreement concerning a partnership, joint venture or investment or relating to any distributorship or franchise;
(e) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any Indebtedness for borrowed money or any other obligation, or any capitalized lease obligation, or under which there is imposed an Encumbrance on any of its Subsidiaries to engage assets, tangible or intangible;
(f) any agreement concerning confidentiality or noncompetition or otherwise prohibiting the Company from freely engaging in any line of business, engage in business in or requiring it to exclusively sell or purchase to or from any geographical area or compete Person;
(g) any Contract with any of its Affiliates (including Seller), officer or director or any family member of an Affiliate (including Seller), officer or director;
(h) any agreement containing commitments of suretyship, guarantee or indemnification;
(i) any mortgage, indenture, note, bond or other Person or requiring exclusive dealings agreement relating to Indebtedness provided by the Company or any of its Subsidiaries;
(vij) any agreement involving an Authority;
(Ak) all Contracts any collective bargaining agreement;
(l) any agreement for the purchase employment of materialsany individual on a full-time, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitationpart-time, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration or other basis providing for payments in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (Bm) any Stockholder (agreement providing severance benefits or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than payments upon the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity sale of the Company or any of its Subsidiaries;
(xiiin) Contracts any agreement under which are (A) outside the ordinary course consequences of business for the purchase, acquisition, sale a default or disposition of any assets or properties or (B) for the grant termination could reasonably be expected to any Person of any option or preferential rights to purchase any assets or propertieshave a Material Adverse Effect;
(xivo) all engagement letters with clients of the Company any advertising or any of its Subsidiaries under which any amount is marketing Contracts or may become payable to the Company or any of its Subsidiariessimilar agreements;
(xvp) all Contracts under which the Company providing for “take or any of its Subsidiaries agrees to indemnify any Person; andpay” or similar unconditional purchase or payment obligations;
(xviq) Contracts relating to the acquisition of any business (whether by merger, sale of stock, sale of assets or otherwise) entered into since December 31, 2003;
(r) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 50,000 per year.; or
(is) Each Company Contract is any commitment to do any of the foregoing. Seller has delivered, or made available, to Purchaser a correct and complete copy of each written agreement listed in Schedule 2.14 (as amended to date). With respect to each agreement listed or required to be listed in Schedule 2.14: (A) the agreement is, with respect to the Company, legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and effect in all material respects; (iiB) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereofSeller, any other party, party thereto is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (by the Company, or give rise to any right of permit termination, modification, cancellation or accelerationacceleration under the Contract; and (C) or loss neither the Company nor, to the Knowledge of Seller, any benefits under any Company Contract.
(c) The Company other party has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or repudiated any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(ass.3(n) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements to which the Company or any Target, in connection with the operation of its Subsidiaries the Business, is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00010,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve year, or require expenditures consideration in excess of $100,00010, 000;
(iii) any agreement concerning a profit sharing, partnership, joint venture or other similar arrangement;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $10,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(v) any material agreement concerning confidentiality, non-solicitation of employees or customers or noncompetition;
(vi) any material agreement involving any of the Target Stockholders and their Affiliates;
(vii) all partnership any agreement for the employment of any individual on a full-time, part-time, consulting, or joint venture Contractsother basis;
(viii) all Contracts any agreement under which it has advanced or purchase orders relating loaned any amount to capital expenditures involving total payments by any of the Company directors, officers, and its Subsidiaries employees of more than $100,000 per yearthe Target outside the Ordinary Course of Business;
(ix) all Contracts relating any agreement under which the consequences of a default or termination could reasonably be expected to licenses have a material adverse effect on the business, financial condition, operations, results of Intellectual Property (whether the Company operations, or any of its Subsidiaries is the licensor or licensee thereunder) material to the business future prospects of the Company;Business as a whole; or
(x) all Contracts relating to the future disposition any other agreement (or acquisition group of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (Arelated agreements) the Company or any performance of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
10,000. The Target has delivered to the Buyer a correct and complete copy of each written agreement listed in ss.3(n) of the Disclosure Schedule (ias amended to date). With respect to each such agreement: (A) Each Company Contract the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary obligation of the Company, as the case may beTarget, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effecteffect in all material respects, and (ii) neither the Company nor any of its Subsidiaries nor, after giving effect to the Knowledge transfer, assignment and conveyances of the Company as of Acquired Asset contemplated hereby at the date hereofClosing, any other party, will continue to be in full force and effect in all material respects; (B) Target is not in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (by Target, or give rise to any right of permit termination, modification, cancellation or accelerationacceleration by any other party thereto, under the agreement; and (C) or loss of Target has not received any benefits under notice that any Company Contract.
(c) The Company party has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or repudiated any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Asset Purchase Agreement (Mim Corp)
Contracts. Section 3.16 of Seller’s Disclosure Schedule lists the following contracts and other agreements, whether written or oral, to which Seller or any Subsidiary is a party:
(a) Section 4.15(aany agreement (or group of related agreements) for the lease of the Disclosure Schedule sets forth a complete and accurate list of each Contract of the following types personal property to or having the following terms to which the Company or from any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):
(i) all Contracts Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,0005,000.00 per year;
(iib) all material Contracts (other than employment contracts) with any current agreement concerning a partnership or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling personjoint venture;
(iiic) any agreement (Aor group of related agreements) all instruments relating to under which it has created, incurred, assumed or guaranteed any indebtedness for borrowed money, or any notecapitalized lease obligation, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,00025,000.00 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(ivd) all leaseany agreement concerning confidentiality or noncompetition that restricts Seller’s business;
(e) any agreement involving any Member and their Affiliates (other than Seller);
(f) any profit sharing, subleaseoption, rentallimited liability company interests purchase, license limited liability company interest appreciation, deferred compensation, severance or other Contracts plan or arrangement for the benefit of its current or former directors, officers and employees;
(g) any collective bargaining agreement;
(h) any agreement for the employment of any individual on a full-time, part-time, consulting or other basis;
(i) any agreement under which it has advanced or loaned any amount to any of its directors, officers and employees outside the Ordinary Course of Business;
(j) any agreement granting any power of attorney with respect to the affairs of Seller;
(k) any indemnity agreement, suretyship contract, performance bond, Assets maintenance or other form of guaranty agreement;
(l) any agreement to indemnify, hold harmless or defend any third party;
(m) any agreement under which the Company consequences of a default or termination could have a Material Adverse Effect on Seller or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) monthsSubsidiary;
(vn) all Contracts containing any covenant sales or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts customer contract involving a customer was responsible for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) 50,000.00 in revenue for the sale by the Company year ended December 31, 2012; or
(o) any other agreement (or any group of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iiirelated agreements) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
15,000.00 other than contracts that have no volume limitations and contracts that are cancellable on 30 days’ notice without liability to Seller. Seller has delivered to Buyer, or provided access to Buyer for review, a correct and complete copy of each written agreement listed in Section 3.16 of Seller’s Disclosure Schedule (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Section 3.16 of Seller’s Disclosure Schedule. With respect to each such agreement: (i) Each Company Contract the agreement is legal, valid, binding binding, enforceable and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effecteffect except as enforceability may be limited by applicable bankruptcy, and insolvency, or similar laws affecting the enforcement of creditors’ rights generally or by general principles of equity; (ii) neither the Company nor any of its Subsidiaries noragreement will continue to be legal, to valid, binding, enforceable and in full force and effect on identical terms following the Knowledge consummation of the Company as of the date hereof, any other party, transactions contemplated hereby; (iii) no party is in material breach or default, and no event has occurred which could constitute (that, with or without notice or lapse of time or both) time, would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (iv) or loss of no party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Asset Purchase Agreement (CVSL Inc.)
Contracts. (a) Section 4.15(a) Schedule 5.16 of the Company Disclosure Schedule sets forth a complete and accurate list of each Contract of Schedules lists the following types or having the following terms oral and written Contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectivelyparty, the “Company excluding Government Contracts”)::
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000lease payments;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation furnishing to or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale receipt by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess from the date of $100,000this Agreement;
(viiiii) all any agreement concerning a partnership or joint venture Contractsventure;
(viiiiv) all Contracts any agreement (or purchase orders relating to capital expenditures involving total payments by the Company and group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, or under which it has imposed an Lien on any of its Subsidiaries of more than $100,000 per yearassets, tangible or intangible, or any currency or interest rate swap, collar or hedge agreement;
(ixv) all Contracts relating any agreement concerning confidentiality or noncompetition or which contains any covenant that purports to licenses restrict the business activity of Intellectual Property (whether the Company or limits its ability to engage in any line of business;
(vi) any agreement with (i) any Shareholder, (ii) Affiliates of any of its Subsidiaries is the licensor Shareholders or licensee thereunder(iii) material to the business any employee or director of the Company;
(vii) any Employee Benefit Plan, profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) any collective bargaining agreement;
(ix) any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis or providing severance benefits;
(x) all Contracts relating any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the future disposition or acquisition Ordinary Course of any business enterprise or any interest in any business enterpriseBusiness;
(xi) any agreement for the acquisition of securities or substantially all Contracts between the assets of any other Person (including by merger or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holderconsolidation), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining any agreement containing an express undertaking to the issuance of debt pay liquidated damages or equity of the Company or any of its Subsidiariesa penalty;
(xiii) Contracts any customer agreement, including any agreement pursuant to which are (A) outside the ordinary course Company is acting as a subcontractor, pursuant to which the Company has received revenues of business for $200,000 or more during the purchase, acquisition, sale or disposition 12 months prior to the date of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or propertiesthis Agreement;
(xiv) all engagement letters with clients any other agreement (or group of related agreements) which involves the payment by the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year50,000; or
(xv) any agreement under which the consequences of a default or termination could reasonably be expected to have a Material Adverse Effect on the Company.
(b) The Company has delivered or Made Available to the Purchaser a correct and complete copy of each written agreement listed in Schedule 5.16 of the Company Disclosure Schedules (as amended to date), except that with respect to written agreements with the Company’s current and former employees, such agreements are retained in the applicable employee’s personnel file and were made available to the Purchaser for review at such location. With respect to each such agreement, except as described in Schedule 5.16 of the Company Disclosure Schedules: (i) Each Company Contract the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companyand, as the case may be, and to the Knowledge of the Company as Company, each of the date hereof, against each other party theretoparties to such agreement, and is in full force and effect; (ii) the agreement will continue to be legal, valid, binding and enforceable against the Company and, to the Knowledge of the Company, each of the other parties to such agreement, and in full force and effect on identical terms following the consummation of the transactions contemplated by this Agreement; (iiiii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereofCompany, any other party, party to the agreements identified in Schedule 5.16 is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (iv) or loss to the Knowledge of any benefits under any Company Contract.
(c) The Company the Company, no party has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or repudiated any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(aSection4(p) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements to which the Company or any of its Subsidiaries Target is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts providing any agreement (or group of related agreements) for the employment, retention, bonus, severance lease of personal property to or other service relationship with from any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000Person;
(ii) all any material Contracts agreement (other than employment contractsor group of related agreements) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one year;
(1iii) year any material agreement concerning a partnership or joint venture;
(iv) any material agreement (or group of related agreements) under which the Target has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, or under which the Target has imposed a Security Interest on any of its assets, tangible or intangible;
(v) any material agreement concerning confidentiality or noncompetition;
(vi) any material agreement with the Seller and involve consideration in excess of $100,000its Affiliates (other than the Target);
(vii) all partnership any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or joint venture Contractsother material plan or arrangement for the benefit of the Target's current or former directors, officers, and employees;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearany collective bargaining agreement;
(ix) all Contracts relating to licenses any material agreement for the employment of Intellectual Property (whether the Company any individual on a full-time, part-time, consulting, or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Companyother basis;
(x) all Contracts relating any agreement under which the Target has advanced or loaned any amount to any of its directors, officers, and employees outside the future disposition or acquisition Ordinary Course of any business enterprise or any interest in any business enterprise;Business; or
(xi) all Contracts between any agreement under which the consequences of a default or among termination could have a material adverse effect on the business, financial condition, operations or results of operations of the Target. The Seller has delivered to the Buyer a correct and complete copy of each written agreement listed in Section4(p) of the Disclosure Schedule (as amended to date). With respect to each such agreement: (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
(i) Each Company Contract agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and effect in all material respects; (iiB) neither the Company nor any of its Subsidiaries norSeller is not and, to the Seller's Knowledge of the Company as of the date hereofno other party is, any other party, is in material breach or default, and to the Seller's Knowledge no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (C) or loss of any benefits under any Company Contract.
(c) The Company the Target has delivered not and, to Parent complete and accurate copies of each Company Contract through the date hereof and there has been Seller's Knowledge, no material modificationother party has, waiver or termination of any Company Contract or repudiated any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(a) 4.15 of the Company Disclosure Schedule sets forth a complete Letter lists the following contracts and accurate list of each Contract other agreements to which any of the following types or having the following terms to which the Company or any of and its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(ia) all Contracts providing any agreement (or group of related agreements) for the employment, retention, bonus, severance lease of personal property to or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of from any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 200,000 per annum and a term of at least twelve (12) monthsannum;
(vb) all Contracts containing any covenant agreement (or provision limiting the freedom or ability group of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(virelated agreements) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of one year or more (and is entered into other than one (1in the Ordinary Course of Business) year and or involve consideration in excess of $100,000200,000 (other than purchase orders or sales orders in the Ordinary Course of Business);
(viic) all any agreement concerning a partnership or joint venture Contractsor providing for payments to or by any Person based on or determined by reference to sales, purchases or profits, other than direct payments for products;
(viiid) all Contracts any agreement (or purchase orders relating group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, or any agreement (or group of related agreements) under which it has imposed a Security Interest on any of its assets, tangible or intangible, or any currency or interest rate swap, collar or hedge agreement;
(e) any agreement concerning confidentiality or noncompetition or which contains any covenant that purports to capital expenditures involving total payments by restrict the business activity of any of the Company and its Subsidiaries or limits their ability to engage in any line of more than $100,000 per yearbusiness;
(ixf) all Contracts relating to licenses any agreement with any of Intellectual Property (whether the holders of the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, Shares and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party their Affiliates (other than the CompanyCompany and its Subsidiaries) or with any employee or director (other than employment or stock option agreements), on the other hand;
(xiig) Contracts pertaining any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation or other equity-based or profit sharing type plan or arrangement for the benefit of its current or former directors, officers, and employees;
(h) any collective bargaining agreement;
(i) any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis providing annual compensation in excess of $75,000 (including commissions and bonus payments) or providing severance benefits;
(j) any agreement under which it has advanced or loaned any amount to the issuance of debt or equity of the Company or any of its Subsidiariesdirectors, officers and employees outside the Ordinary Course of Business;
(xiiik) Contracts which are (A) outside the ordinary course of business any agreement for the purchase, acquisition, sale acquisition of the securities or disposition substantially all of the assets of any assets other Person (including by merger or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or propertiesconsolidation);
(xivl) all engagement letters with clients any agreement containing an express undertaking to pay liquidated damages or a penalty in excess of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person$200,000; and
(xvim) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.
200,000 (iother than purchase orders or sales orders in the Ordinary Course of Business). The Company has delivered to the Buyer a correct and complete copy of each written agreement listed in Section 4.15 of the Company Disclosure Letter (as amended to date) Each and a written summary setting forth the terms and conditions of each oral agreement referred to in Section 4.15 of the Company Contract Disclosure Letter. With respect to each such agreement: (A) the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and ; (iiB) neither the Company nor any of its Subsidiaries nor, to the Knowledge except as provided in Section 4.15 of the Company as Disclosure Letter, the agreement will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms and conditions following the consummation of the date hereof, any other party, transactions contemplated hereby; (C) no party is in material breach or default, and and, to the Knowledge of the Company, no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (D) or loss no party has repudiated, whether in writing or, to the Knowledge of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modificationCompany, waiver or termination of any Company Contract or otherwise, any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Merger Agreement (Hughes Supply Inc)
Contracts. (a) Section 4.15(aSchedule 3.14(a) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of the following types or having the following terms agreements to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Material Contracts”):
(i) all Contracts any option, purchase and sale contract or lease (whether real or personal property, equipment, machinery, or other assets, tangible or intangible) providing for annual payments to or by the Company of US$50,000 or more, excluding any such contracts that are terminable by the Company on not more than thirty (30) calendar days’ notice without payment by the Company of any penalty;
(ii) contracts providing for payments to the Company of more than US$50,000 in any instance (or any contract providing for aggregate payments to the Company of more than US$50,000) for the purchase, sale, transport or sale of coal, materials, goods, supplies, equipment or services, excluding any such contracts that are terminable by the Company without penalty on not more than thirty (30) calendar days’ notice;
(iii) partnership, limited liability company, joint venture agreements or other agreements involving a sharing of profits or expenses by the Company;
(iv) any agreement with (A) any entity within the Seller Group or (B) any director or executive officer of an entity within the Seller Group or any Person who is an immediate relative of any such Person, or any combination of such Persons (each such agreement described in clauses (A) and (B), an “Affiliate Agreement”);
(v) any collective bargaining agreement with any labor union in respect of any of the Company’s employees, including, without limitation, the San ▇▇▇▇ Mine Employees;
(vi) contracts providing for the employment, retention, bonus, severance severance, consulting or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company Company’s employee or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, manager, director, stockholder, employee, consultant, agent consultant or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings compensation by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000Company;
(vii) all partnership contracts governing Indebtedness or joint venture Contractsany guarantee thereof, or the imposition of an Encumbrance on any assets of the Company, other than Permitted Encumbrances;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by contracts the primary purpose of which is for the Company and its Subsidiaries to indemnify any Person or for the Company to assume any Tax, environmental or other Liability of more than $100,000 per yearany Person;
(ix) all Contracts contracts relating to Intellectual Property, pursuant to which the Company is licensed or otherwise permitted to use or hold for use any material rights under any Intellectual Property, including licenses of patent, trademark, trade secrets, copyright, or other Intellectual Property rights (whether the Company but excluding licenses for “off-the-shelf” or any “shrink-wrap” software), in each case involving a one-time or annual fee of its Subsidiaries is the licensor US$50,000 or licensee thereunder) material to the business of the Companygreater;
(x) all Contracts relating to powers of attorney or similar contracts involving the future disposition Company or acquisition of any business enterprise or any interest in any business enterprisethe Company’s assets;
(xi) all Contracts between or among (A) contracts relating to information technology providing for payments by the Company or any of its Subsidiaries, more than US$50,000 on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Personan annual basis; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
(i) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(a) 4.25 of the Company Disclosure Schedule sets forth a complete and accurate list of each Contract of Letter lists --------- ------------ the following types or having the following terms written Contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of on the date hereof (collectively, the “Company Contracts”):hereof:
(ia) all Contracts providing any agreement (or group of related agreements) for the employment, retention, bonus, severance lease of personal property to or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of from any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) monthsannum;
(vb) all Contracts containing any covenant agreement (or provision limiting the freedom or ability group of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(virelated agreements) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and year, or involve total consideration in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand500,000, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business agreement for the purchase, acquisition, sale or disposition purchase of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which a chauffeured vehicle service business that involves total consideration in excess of $100,000 per year.
(i) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.500,000;
(c) The Company any agreement (or group of related agreements) under which it has delivered to Parent complete and accurate copies created, incurred, assumed, or guaranteed any Indebtedness in excess of each Company Contract through the date hereof and there $100,000, including any capital lease obligation, or under which it has been no material modificationimposed a Lien on any of its assets, waiver tangible or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.intangible;
(d) There are no non-competition or non-solicitation agreements any agreement concerning confidentiality, noncompetition or any other similar agreements agreement which restricts or arrangements that could may hereafter restrict the geographic or hinder the operations or conduct operational scope of the business of the Company or any of its Subsidiaries or the use ability of the Company or any of its properties Subsidiaries to enter into new lines of business;
(e) any collective bargaining agreement;
(f) any agreement for the employment of any individual on a full-time, part-time, consulting, or assets other basis providing annual compensation in excess of $75,000 or providing severance benefits;
(g) any “earn-out” agreements agreement under which it has advanced or arrangements loaned in an amount in excess of $25,000 to any of its directors, officers, and employees outside the ordinary course of business consistent with past practices;
(h) any other agreement (or any group of related agreements) the performance of which involves consideration in excess of $250,000. The Company has delivered or made available to Parent a correct and complete copy of each written agreement listed in Section 4.25 of the Company ------------ Disclosure Letter (as amended to date). With respect to each such agreement: (i) the agreement is legal, valid, binding, enforceable, and in full force and effect, except that such enforceability (x) may be limited by bankruptcy, insolvency, moratorium or other similar agreements laws affecting or arrangementsrelating to the enforcement of creditors' rights generally and (y) is subject to general principles of equity; (ii) except as disclosed in Section 4.25 of the Company ------------ Disclosure Letter, the agreement does not require the Consent of the other contracting party to the transactions contemplated hereby; (iii) to the Company's knowledge, no party is in breach or default, and no event has occurred which with notice or lapse of time or both would constitute such a breach or default, or permit termination, modification, or acceleration, under the agreement; (iv) to the Company's knowledge, no party has repudiated any provision of the Stockholders agreement; and (or Holdersv) or no 280G liability under the Code would be triggered under such agreement in connection with the transactions contemplated by this Agreement, except as disclosed in Section 4.25 of the Company Disclosure ------------ Letter. There are no oral material agreements to which the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement)party.
Appears in 1 contract
Contracts. (aSchedule 4(o) Section 4.15(a) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other ---------- agreements to which the Company or any of its Subsidiaries Subsidiary is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,000300,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and year, result in a material loss to the Subsidiary, or involve consideration in excess of $1.6 million;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $1.6 million or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any agreement with any of the Seller and its Affiliates (other than the Subsidiary);
(vii) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) any collective bargaining agreement;
(ix) any agreement for the employment of any individual on a full- time, part-time, consulting, or other basis providing annual compensation in excess of $100,000 or providing severance benefits in excess of $100,000;
(viix) all partnership any agreement under which it has advanced or joint venture Contracts;
(viii) all Contracts or purchase orders relating loaned any amount to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is directors, officers, and employees outside the licensor or licensee thereunder) material to the business Ordinary Course of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterpriseBusiness;
(xi) all Contracts between any agreement under which the consequences of a default or among (A) the Company or any of its Subsidiaries, termination could have a material adverse effect on the one handbusiness, and (B) any Stockholder (financial condition, operations or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than results of operations of the Company), on the other hand;Subsidiary; or
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.
(i) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).1.6
Appears in 1 contract
Contracts. (a) Section 4.15(a) of The Target has delivered to the Disclosure Schedule sets forth Buyer a correct and complete and accurate list copy of each Contract of the following types or having written agreements and a written summary setting forth the terms and conditions of each of the following terms to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):oral agreements:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,0005,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and year, result in a loss to the Target, or involve consideration in excess of $100,0005,000;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $5,000 or under which it has imposed an Encumbrance on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any agreement with any of the shareholders of the Target;
(vii) all partnership any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or joint venture Contractsother plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearany collective bargaining agreement;
(ix) all Contracts relating to licenses any agreement for the employment of Intellectual Property (whether the Company any individual on a full-time, part-time, consulting, or any other basis providing annual compensation in excess of its Subsidiaries is the licensor $5,000 or licensee thereunder) material to the business of the Companyproviding severance benefits;
(x) all Contracts relating any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the future disposition or acquisition Ordinary Course of any business enterprise or any interest in any business enterpriseBusiness;
(xi) all Contracts between any agreement under which the consequences of a default or among (A) the Company or any of its Subsidiaries, termination could have an adverse effect on the one handbusiness, and (B) any Stockholder (or Holder)financial condition, such Stockholder’s Affiliate (or Holder’s Affiliate)operations, results of operations, or any Related Party (other than future prospects of the Company), on the other hand;Target; or
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.
5,000. With respect to each such agreement: (iA) Each Company Contract the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable, and (ii) neither in full force and effect on identical terms following the Company nor any of its Subsidiaries nor, to the Knowledge consummation of the Company as of the date hereof, any other party, transactions contemplated hereby; (C) no party is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (D) or loss of no party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Merger Agreement (Navidec Inc)
Contracts. (a) Section 4.15(a) of The Buyer has delivered to the Disclosure Schedule sets forth Target a correct and complete and accurate list copy of each Contract of the following types or having written agreements and a written summary setting forth the terms and conditions of each of the following terms to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):oral agreements:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,0005,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and year, result in a loss to the Buyer, or involve consideration in excess of $100,0005,000;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $5,000 or under which it has imposed an Encumbrance on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any agreement with any of the shareholders of the Buyer;
(vii) all partnership any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or joint venture Contractsother plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearany collective bargaining agreement;
(ix) all Contracts relating to licenses any agreement for the employment of Intellectual Property (whether the Company any individual on a full-time, part-time, consulting, or any other basis providing annual compensation in excess of its Subsidiaries is the licensor $5,000 or licensee thereunder) material to the business of the Companyproviding severance benefits;
(x) all Contracts relating any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the future disposition or acquisition Ordinary Course of any business enterprise or any interest in any business enterpriseBusiness;
(xi) all Contracts between any agreement under which the consequences of a default or among (A) the Company or any of its Subsidiaries, termination could have an adverse effect on the one handbusiness, and (B) any Stockholder (or Holder)financial condition, such Stockholder’s Affiliate (or Holder’s Affiliate)operations, results of operations, or any Related Party (other than future prospects of the Company), on the other hand;Buyer; or
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.
5,000. With respect to each such agreement: (iA) Each Company Contract the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable, and (ii) neither in full force and effect on identical terms following the Company nor any of its Subsidiaries nor, to the Knowledge consummation of the Company as of the date hereof, any other party, transactions contemplated hereby; (C) no party is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (D) or loss of no party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Merger Agreement (Navidec Inc)
Contracts. (a) Section 4.15(a3.14(a) of the Seller Disclosure Schedule Letter sets forth a complete and accurate list as of each Contract the date of this Agreement of the following types contracts, agreements, commitments, arrangements or having the following terms understandings of any kind, whether written or oral, to which the Company or any of its Subsidiaries Seller is a party or by which the Company Seller or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Seller Material Contracts”):
(i) all Contracts any Real Property Lease or Third Party Lease and any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00025,000 per year;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling personTakedown Contract;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating (or group of related agreements) for the purchase, sale or license of products by Seller or for the furnishing or receipt of services by the Seller or client referrals to the extension Seller which involves a contractual value of credit or the granting of a Lien other more than Permitted Liens, or $25,000 (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000based on projections set forth under such agreement);
(iv) all leaseany agreement concerning the establishment or operation of a partnership, subleasejoint venture, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) monthslimited liability company;
(v) all Contracts containing any covenant agreement (or provision limiting the freedom group of related agreements) under which Seller has created, incurred, assumed or ability guaranteed (or may create, incur, assume or guarantee) Indebtedness in excess of the Company $5,000 (including capitalized lease obligations or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiariescapital expenditures);
(vi) any agreement for the disposition of any significant portion of the assets of Seller or the Business (other than sales of Housing Units in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory in the Ordinary Course of Business);
(vii) any currently effective contract for the employment or engagement of any executive officer, employee, or other individual on an employment, consulting, or independent contractor basis that (A) all Contracts is not terminable at will (for any lawful reason or for no reason) without penalty, severance obligation, or other liability or (B) provides for the purchase payment or acceleration of materialspayment of cash or other compensation or payment or acceleration of any other benefits under any compensation or benefit plan, inventory, supplies or equipment (including, without limitation, computer hardware and Software)program, or agreement, upon the consummation of the transactions contemplated by this Agreement;
(viii) any currently effective contract for any bonus, incentive, commission, pension, profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, change-in-control, hospitalization, insurance, or other material plan or arrangement for the provision benefit of servicesSeller’s current or former directors, involving annual payments officers, employees, or independent contractors;
(ix) any agreement that grants any exclusive marketing, distribution, Intellectual Property, or other similar rights to any third party or otherwise purports to prohibit or limit, in any material respect, the right of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company Seller or any of its Subsidiaries; and Affiliates (B) notwithstanding (A)including, all Contracts (i) in accordance with material customers the terms of the business of contracts in effect on the Company date hereof, Parent or any of its SubsidiariesAffiliates after the Effective Time) to make, sell, market, advertise or distribute any products or services or use, transfer, license, distribute or enforce any of Seller’s Intellectual Property;
(iix) for any agreement containing exclusivity, non-compete or non-solicitation provision or that otherwise purports to limit in any material respect either the sale by type of business or the Company geographic area in which Seller or any Affiliates of Seller (including, in accordance with the terms of the contracts in effect on the date hereof, Parent or any of its Subsidiaries of materials, supplies, inventory Affiliates after the Closing Date) may engage in business;
(xi) any agreement that grants a third party “most favored nation” status or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company purports to require Seller or any of its Subsidiaries Affiliates (including, without limitationin accordance with the terms of the contracts in effect on the date hereof, consulting services, data processing and management, and project management services), Parent or any of its Affiliates after the Effective Time) to offer a third party the same or better price for a product or service if Seller or such Affiliate offers a lower price for the same product or service to another third party;
(xii) each agreement under which Seller has advanced or loaned any other Person outstanding amounts in the aggregate for such Person exceeding $10,000;
(xiii) each outstanding power of attorney with respect to Seller;
(xiv) each agreement that calls for performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party three months (other than the Companythose that are terminable at will or upon not more than 30 days’ notice by Seller without any liability or other obligation to Seller), on except for contracts for the other hand;
sale of Housing Units in the Ordinary Course of Business and that conform to Seller’s standard form contract (xii) Contracts pertaining as provided to Parent prior to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiariesdate hereof);
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify development agreement with any Person; andGovernmental Authority;
(xvi) any agreement related to the Real Property or other Contract real estate granting the Seller a direct or indirect right of first offer or right of first refusal or where Seller has granted such rights to a third party;
(xvii) any contract of surety, guarantee or indemnity;
(xviii) any contract requiring or related to any Business Collateral;
(xix) all contracts providing payment to or by any Person or entity based upon the sales, purchases or profits, other than direct payments for goods and services;
(xx) any agreement with any contractor, subcontractor or other materialmen in connection with any work completed that remains unpaid or that has other obligations, covenants, indemnifications, representations or warranties which involves consideration in excess of $100,000 per yearremain effective, being completed, or to be completed related to the Real Property; and
(xxi) any other agreement that is material to Seller or the Business and not otherwise disclosed pursuant to this Section 3.14(a).
(ib) Seller has made available to Parent a true, correct and complete copy of each written Assigned Contract and each written Seller Material Contract (together with any and all amendments, supplements, or modifications thereto) and accurate descriptions of all material terms of all non-written Assigned Contract and each non-written Seller Material Contract.
(c) Each Company Assigned Contract is legalin full force and effect with respect to Seller, valid, binding is legal valid and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may bebinding, and to the Knowledge of the Company as of the date hereofSeller, against with respect to each other party thereto, except as the enforceability of such Assigned Contract may be limited by principles of public policy and is in full force subject to the laws of general application relating to bankruptcy, insolvency and effectthe relief of debtors and rules of law governing specific performance, and (ii) neither the Company nor any of its Subsidiaries injunctive relief or other equitable remedies. Neither Seller nor, to the Knowledge of the Company as of the date hereofSeller’s Knowledge, any other party, party to any Assigned Contract is in material violation of or in material default under any Assigned Contract, and to Seller’s Knowledge all of the covenants to be performed by the parties thereunder to date have been fully performed and no claims have been made or issued for breach or default, and no event has occurred which could constitute (with indemnifications or without notice of default or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits termination under any Company Assigned Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(a) 5.17 of the Inbox Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts, agreements, commitments and other arrangements to which the Company or any of its Subsidiaries Inbox is a party or by which the Company Inbox or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):bound:
(ia) all Contracts providing any agreement (or group of related agreements) for the employment, retention, bonus, severance lease of personal property to or other service relationship with from any current Person or former officer, director, employee, consultant license of any software or other person requiring compensation Intellectual Property which involves the payment by the Company (the name, position or capacity and rate to Inbox of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of more than $50,00025,000 per year;
(iib) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and or involve consideration in excess of $100,00025,000;
(viic) all partnership any agreement for the purchase of supplies, components, products or joint venture Contracts;
(viii) all Contracts services from single source suppliers, custom manufacturers or purchase orders relating to capital expenditures involving total payments subcontractors which involves the payment by the Company and its Subsidiaries Inbox of more than $100,000 25,000 per year;
(ixd) all Contracts relating to licenses any agreement concerning a partnership or joint venture;
(e) any agreement (or group of Intellectual Property related agreements) under which Inbox has created, incurred, assumed, or guaranteed any indebtedness for borrowed money or any capitalized lease obligation in excess of $25,000 or under which a Security Interest has been imposed on any of its assets, tangible or intangible;
(whether the Company f) any agreement concerning noncompetition or restraint of trade or any agreement on currently active projects which involves confidentiality;
(g) any agreement with any Inbox shareholder or any of its Subsidiaries is the licensor such shareholder's Affiliates (other than Inbox) or licensee thereunder) material to the business with any Affiliate of the CompanyInbox;
(xh) all Contracts relating to any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the future disposition benefit of its current or acquisition of any business enterprise former directors, officers or any interest in any business enterpriseemployees;
(xii) all Contracts between any collective bargaining agreement;
(j) any agreement for the employment of any individual on a full-time, part-time, consulting, or among other basis;
(Ak) the Company any agreement under which it has advanced or loaned any amount to any of its Subsidiariesdirectors, on the one handofficers, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other handemployees;
(xiil) Contracts pertaining any agreement pursuant to the issuance which Inbox is obligated to provide services, maintenance, support or training which involves payments to Inbox of debt or equity of the Company or any of its Subsidiariesmore than $50,000 per year;
(xiiim) Contracts which are (A) outside the ordinary course any standard form agreement used by Inbox, including, but not limited to, any purchase order, statement of business for the purchasestandard terms and conditions of sale, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Personemployment offer letter; and
(xvin) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.
25,000 or which is expected to continue for more than twelve (i12) Each Company Contract months from the date hereof (or, in the case of maintenance contracts, in excess of $50,000) and which is expected to continue for more than twelve (12) months from the date hereof. Inbox has made available to Aspec a correct and complete copy of each written agreement listed in Section 5.17 of the Inbox Disclosure Schedule (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Section 5.17 of the Inbox Disclosure Schedule. With respect to each such agreement: (A) the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, effect in all respects against Inbox and the other parties thereto; (iiB) neither the Company nor any of its Subsidiaries norInbox is not and, to the Knowledge knowledge of the Company as of the date hereofInbox, any no other party, party is in material breach or default, and no event has occurred occurred, which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; (C) or loss Inbox has not and, to the knowledge of Inbox, no other party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof agreement; and (D) Inbox does not have any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of reason to believe that the Disclosure Schedule, no Company Contract is terminable or cancelable as service called for thereunder cannot be supplied in accordance with its terms and without resulting in a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or loss to any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement)Inbox.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Aspec Technology Inc)
Contracts. (ai) Section 4.15(a4.03(n)(i) of the Shareholder Disclosure Schedule sets forth contains a complete and accurate list of each Contract list, and the Shareholders have delivered to RDSI true and complete copies, of the following types following:
(A) each contract that involves performance of services or having the following terms to which the Company delivery of goods by one or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as more of the date hereof (collectively, the “Company Contracts”):
(i) all Contracts providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate Companies of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder an amount in excess of $50,00010,000;
(iiB) all material Contracts (other than employment contracts) with any current each contract that involves performance of services or former officer, director, stockholder, employee, consultant, agent delivery of goods to one or other representative more of the Company or any Companies of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity amount in excess of $100,00010,000;
(ivC) all lease, sublease, rental, license each contract that was not entered into in the Ordinary Course of Business and that involves expenditures or other Contracts under which the Company receipts of one or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments more Companies in excess of $100,000 per annum and a term of at least twelve (12) months5,000;
(vD) all Contracts each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $500 and with terms of less than one year) of a Company;
(E) each licensing agreement or other contract with respect to Intellectual Property used by a Company, including agreements with current or former employees, consultants, or contractors regarding the assignment, appropriation or non-disclosure of any such Intellectual Property;
(F) each joint venture, partnership and other contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Company with any other Person;
(G) each contract containing covenants that in any covenant or provision limiting way purport to restrict the freedom or ability business activity of the either Company or any affiliate of its Subsidiaries a Company or limit the freedom of either Company or any affiliate of a Company to engage in any line of business, engage in business in any geographical area or to compete with any Person;
(H) each contract providing for commissions or other payments to or by any Person based on sales, revenues or requiring exclusive dealings profits of a Company;
(I) each power of attorney granted by either Company that is currently effective and outstanding;
(J) each contract for capital expenditures in excess of $5,000 to which a Company is a party;
(K) each written warranty, guaranty, or other similar undertaking with respect to contractual performance extended by either Company other than in the Company Ordinary Course of Business; and
(L) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Except as set forth in Section 4.03(n)(ii) of the Shareholder Disclosure Schedule, each contract identified or required to be identified in Section 4.03(n)(i) of the Shareholder Disclosure Schedule is in full force and effect and is valid and enforceable in accordance with its terms;
(iii) Except as set forth in Section 4.03(n)(iii) of the Shareholder Disclosure Schedule: (A) no officer, director, shareholder or Related Person of either of the Companies has or may acquire any rights under any Applicable Contract that relates to the business of, or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materialsassets owned or used by, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its SubsidiariesCompanies; and (B) notwithstanding (A)no officer, all Contracts (i) with material customers director, or employee of the business Companies is bound by any contract that purports to limit the ability of the Company or any of its Subsidiariessuch officer, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software)director, or (iii) for the provision of services by the Company or any of its Subsidiaries (includingemployee, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one to (1) year and involve consideration engage in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts continue any conduct, activity, or purchase orders practice relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the CompanyCompanies, or (2) assign to the Companies or to any other Person any rights to any invention, improvement, or discovery;
(xiv) all Contracts relating to Except as set forth in Section 4.03(n)(iv) of the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among Shareholder Disclosure Schedule: (A) the each Company is, and at all times since January 1, 2006 has been, in compliance with all applicable terms and requirements of each contract under which such Company has any right, obligation or liability or by which such Company or any of its Subsidiariesthe assets owned or used by such Company is bound (each, on an “Applicable Contract”), except where the one hand, and failure to comply would not give rise to any right of termination of the Applicable Contract or claim for material damages; (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance Knowledge of debt Shareholders, each other Person that has or equity of the Company had any obligation or liability under any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Applicable Contract which involves consideration in excess of $100,000 per year.
(i) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may beis, and at all times since January 1, 2006 has been, in material compliance with all applicable terms and requirements of such contract; (C) to the Knowledge of the Company as of the date hereofShareholders, against each other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and no event has occurred which could constitute or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; (D) neither Company has given to or received from any other Person, at any time since January 1, 2006, any written notice or, to the Knowledge of the Shareholders, oral notice regarding any actual, alleged, possible, or both) a material potential violation or breach of, or default under, any Applicable Contract; and (E) there are no renegotiations of, attempts to renegotiate, or give rise outstanding rights to renegotiate any right of termination, modification, cancellation material amounts paid or acceleration) or loss of any benefits payable to either Company under any Company ContractApplicable Contract with any Person.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(a) of the The Disclosure Schedule sets forth a complete and accurate list of each Contract of Letter lists the following types or having the following terms Contracts to which the Company or any of its Subsidiaries ▇▇▇▇▇▇ is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts any Contract (or group of related Contracts) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,000€25,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract (or group of guarantee of credit in favor of any Person or entity in excess of $100,000;
(ivrelated Contracts) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software)personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and or involve consideration in excess of $100,000€25,000;
(iii) any Contract concerning a partnership or joint venture;
(iv) any Contract (or group of related Contracts) under which ▇▇▇▇▇▇ has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of €25,000 or under which it has imposed a Lien on any of its assets, tangible or intangible;
(v) any Contract concerning confidentiality or non-competition other than non-disclosure agreements entered into in the Ordinary Course of Business;
(vi) any Contract under which ▇▇▇▇▇▇ is currently or potentially obligated to share revenues or income with any other Person;
(vii) all partnership any Contract with a Seller or joint venture Contractsany of its Affiliates;
(viii) all Contracts any profit sharing, stock option, share option, stock purchase, stock appreciation, deferred compensation, severance, or purchase orders relating to capital expenditures involving total payments by other plan or Contract for the Company and benefit of its Subsidiaries of more than $100,000 per yearcurrent or former directors, officers, or employees;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Companycollective bargaining Contract;
(x) all Contracts relating to any Contract for the future disposition or acquisition employment of any business enterprise individual on a full-time, part-time, consulting, or any interest in any business enterpriseother basis;
(xi) all Contracts between any Contract under which ▇▇▇▇▇▇ has advanced or among (A) the Company or loaned any amount to any of its Subsidiariesdirectors, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate)officers, or any Related Party employees (other than the Companytravel advances), on the other hand;
(xii) Contracts pertaining to any Contract under which the issuance consequences of debt a default or equity of the Company or any of its Subsidiariestermination would have a Material Adverse Effect;
(xiii) Contracts any Contract under which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to ▇▇▇▇▇▇ has granted any Person of any option or preferential registration rights to purchase any assets or properties(including demand and piggyback registration rights);
(xiv) all engagement letters any Contract (other than Contracts with clients Customers in the Ordinary Course of the Company or any of its Subsidiaries Business) under which ▇▇▇▇▇▇ has agreed to indemnify any amount is other Person for any loss, expense or may become payable to the Company or any of its SubsidiariesLiability;
(xv) all Contracts except as set forth in SECTION 4.15(a)(xi), any Contract under which ▇▇▇▇▇▇ has advanced or loaned any other Person amounts in the Company or any of its Subsidiaries agrees to indemnify any Personaggregate exceeding €25,000; andor
(xvi) any other Contract which involves consideration (or group of related Contracts), understanding or course of dealing that will require ▇▇▇▇▇▇ to make any payment in excess of $100,000 per year€25,000 after the Closing (other than in the Ordinary Course of Business).
(b) ▇▇▇▇▇▇ has delivered to SurModics a correct and complete copy of each written Contract (as amended to date) listed in the Disclosure Letter and a written summary setting forth the terms and conditions of each oral Contract referred to in the Disclosure Letter. With respect to each such Contract: (i) Each Company the Contract is legal, valid, binding binding, enforceable (except that the enforcement thereof may be limited by the Enforcement Limitations) and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and ; (ii) the Contract will continue to be legal, valid, binding, enforceable, (except that the enforcement thereof may be limited by the Enforcement Limitations) and in full force and effect on identical terms following the consummation of the Transactions; (iii) neither the Company nor any of its Subsidiaries ▇▇▇▇▇▇ nor, to the Knowledge of the Company as of the date hereof▇▇▇▇▇▇’▇ Knowledge, any other party, party is in material breach or default, and no event has occurred which could constitute (that with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the Contract; and (iv) or loss neither ▇▇▇▇▇▇ nor, to ▇▇▇▇▇▇’▇ Knowledge, any other party has repudiated any provision of any benefits under any Company the Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(aSchedule 4.17(a) of the Disclosure Schedule sets forth contains a complete complete, current and accurate correct list of each Contract all of the following types or having the following terms of Contracts to which the a Lighthouse Company or is a party, by which any of its Subsidiaries is properties or assets are bound, or under which a party Lighthouse Company otherwise has material obligations, with each such responsive Contract identified by each corresponding category (i) – (xii) below: (i) any Contract with any Top Customer or Top Supplier; (ii) any Contract or group of related Contracts which involve expenditures or receipts by which a Lighthouse Company that require payments or yield receipts of more than $50,000 in any twelve (12) month period or more than $100,000 in the Company or aggregate; (iii) any Contract with any of its Subsidiaries officers, directors, employees, consultants or its Affiliates (other than at-will employment arrangements with employees entered into the Ordinary Course of Business), including all non-competition, severance, and indemnification agreements; (iv) any agreement presently in effect for the license of any Intellectual Property involving the payment by or their properties to a Lighthouse Company in excess of $50,000 per year; (v) any power of attorney; (vi) any partnership, joint venture, profit-sharing or assets is or may be bound as of the date hereof similar agreement entered into with any Person; (collectively, the “Company Contracts”):
(ivii) all Contracts providing for the employmentrelating to any merger, retention, bonus, severance consolidation or other service relationship business combination with any current other Person or former officerthe acquisition or disposition of any other entity or its business, directorequity securities or material assets or the sale of a Lighthouse Company, employeeits business, consultant equity securities or material assets outside of the Ordinary Course of Business; (viii) any loan agreement, agreement of indebtedness, credit, note, security agreement, guarantee, mortgage, indenture or other person requiring compensation document relating to Indebtedness, borrowing of money or extension of credit by the or to a Lighthouse Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000;
; (iiix) all any material Contracts settlement agreement entered into within three (3) years prior to the date of this Agreement or under which a Lighthouse Company has outstanding obligations (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative customary obligations of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
confidentiality); (iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (Bx) any Contract granting, licensing, sublicensing or otherwise transferring any Intellectual Property of guarantee a Lighthouse Company other than licenses of credit a Lighthouse Company’s Intellectual Property included in favor such Lighthouse Company’s form customer agreements entered into in the Ordinary Course of Business; (xi) any Person agreement entered into outside the Ordinary Course of Business and presently in effect, involving payment to or entity obligations of in excess of $100,000;50,000, not otherwise described in this Section 4.17(a); and (xii) any other Contract that is material to a Lighthouse Company and outside of the Ordinary Course of Business. All oral Contracts that are responsible to the categories listed above are identified in the Disclosure Schedules. True and correct copies of all the Contracts required to be listed in Schedule 4.17(a) (including any amendments, modifications or supplements thereto) have been provided to Buyer.
(ivb) all leaseExcept as set forth on Schedule 4.17(b), sublease, rental, license or other Contracts under which the no Lighthouse Company or any of its Subsidiaries is a lessor party to or lessee of bound by any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts Contract containing any covenant or provision (i) limiting in any respect the freedom or ability right of the any Lighthouse Company or any of its Subsidiaries Affiliates to engage in any line of business, engage in business in to make use of any geographical area of its Intellectual Property or compete with any other Person in any line of business or requiring exclusive dealings by the Company or in any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiariesgeographic region, (ii) imposing non-solicitation restrictions on any Lighthouse Company or its Affiliates, (iii) granting to the other party any exclusivity or similar provisions or rights, including any covenant by a Lighthouse Company that includes an organizational conflict of interest prohibition, restriction, representation, warranty or notice provision or any other restriction on future contracting, (iv) providing “most favored customers” or other preferential pricing terms for the sale by the services of a Lighthouse Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software)Affiliates, or (iiiv) for otherwise limiting or restricting the provision right of services by the a Lighthouse Company to sell or distribute any Intellectual Property of any Lighthouse Company or to purchase or otherwise obtain any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000;
(vii) all partnership software or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per yearlicense.
(ic) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary All of the CompanyContracts required to be listed in Schedule 4.17(a) or Schedule 4.17(b), as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is are in full force and effect, and (ii) neither are valid, binding, and enforceable in accordance with their terms, subject to performance by the other party or parties to such Contract, except as the enforceability thereof may be limited by the Permitted Exceptions. There exists no breach, default or violation on the part of a Lighthouse Company nor any of its Subsidiaries noror, to the Knowledge of the Company, on the part of any other party to any such Contract nor has a Lighthouse Company as received written or, to the Knowledge of the Company, oral notice of any breach, default or violation. No Lighthouse Company has received notice of an intention by any party to any such Contract that provides for a continuing obligation by any party thereto on the date hereofhereof to terminate such Contract or amend the terms thereof, other than modifications in the Ordinary Course of Business that do not adversely affect any other partyLighthouse Company. No Lighthouse Company has waived any rights under any such Contract. To the Knowledge of the Company, is in material breach or default, and no event has occurred which could constitute (either entitles, or would, with or without notice or lapse of time or both) a material breach or default (or give rise , entitle any party to any right of terminationsuch Contract to declare breach, modificationdefault or violation under any such Contract or to accelerate, cancellation or acceleration) or loss which does accelerate, the maturity of any benefits Indebtedness of a Lighthouse Company under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company such Contract. Except as set forth on Section 4.15(c) Schedule 4.17(c), to the Knowledge of the Disclosure ScheduleCompany, there is no reason to believe that any Contract with a customer of a Lighthouse Company Contract is terminable or cancelable as a result of will not remain in effect after the consummation of Closing through the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any remainder of its Subsidiaries term or continue to generate substantially the use same or more revenue after the Closing through the remainder of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement)term as it currently generates.
Appears in 1 contract
Sources: Equity Purchase Agreement (Staffing 360 Solutions, Inc.)
Contracts. (a) Section 4.15(a4(p) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements to which the Company Target or any of its Subsidiaries InnoWare Plastic is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00040,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and 1 year, result in a material loss to Target or InnoWare Plastic, or involve consideration in excess of $100,00040,000;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any Indebtedness, in excess of $10,000 or under which it has imposed a Lien on any of its assets, tangible or intangible;
(v) any agreement imposing confidentiality, exclusivity or non-competition obligations on Target or InnoWare Plastic;
(vi) any agreement with Seller and its Affiliates (other than Target and InnoWare Plastic);
(vii) all partnership any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or joint venture Contractsother plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearany collective bargaining agreement;
(ix) all Contracts relating to licenses any agreement for the employment of Intellectual Property (whether the Company any individual on a full-time, part-time, consulting, or any other basis providing annual base salary in excess of its Subsidiaries is the licensor $150,000 or licensee thereunder) material to the business of the Companyproviding severance benefits;
(x) all Contracts relating any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the future disposition or acquisition Ordinary Course of any business enterprise or any interest in any business enterpriseBusiness;
(xi) all Contracts between any agreement under which the consequences of a default or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other handtermination would reasonably be expected to have a Material Adverse Effect;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiariesagreement under which it has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(xiii) Contracts any settlement, conciliation or similar agreement, the performance of which are (A) will involve payment after the Most Recent Fiscal Month End of consideration in excess of $20,000, or imposition of monitoring or reporting obligations to any Governmental Entity outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;business; or
(xiv) all engagement letters with clients any agreement under which Target or InnoWare Plastic has advanced or loaned any other Person amounts in the aggregate exceeding $5,000. Seller has delivered to Buyer a correct and complete copy of each written agreement (as amended to date) listed in §4(p) of the Company or any Disclosure Schedule and a written summary setting forth the terms and conditions of its Subsidiaries under which any amount is or may become payable each oral agreement referred to in §4(p) of the Company or any of its Subsidiaries;
Disclosure Schedule. With respect to each such agreement: (xvA) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
(i) Each Company Contract agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated hereby; (iiC) neither the Company Seller nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, Target nor InnoWare Plastic is in material breach or default, and to Seller’s Knowledge, no other party is in breach or default, and no event has occurred which could constitute (that with or without notice or lapse of time or both) would constitute a material breach or default (default, in each case that would reasonably be expected to result in materially adverse consequences to Target or give rise to any right of InnoWare Plastic, or permit termination, modification, cancellation or acceleration, under the agreement; and (D) or loss of no party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(aSchedule 3.10(a) of the Disclosure Schedule sets forth a complete and accurate list of each Assigned Contract (or series of the following types or having the following terms related Assigned Contracts) to which the Company or Seller and any of its Subsidiaries Seller’s Affiliates is a party or by which the Company or any of its Subsidiaries Seller’s respective assets or its or their properties or assets is or may be bound as of are bound, in each case which relate to the date hereof (collectively, the “Company Contracts”):Business and:
(i) all Contracts providing for the employment, retention, bonus, severance is a lease or sublease under which Seller is a lessor or lessee of any real property or equipment or other service relationship tangible property with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), respect to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,00040,000;
(ii) all material Contracts relates to any Personal Property owned or leased by Seller and used in the Business as currently operated and involves a remaining obligation in excess of $40,000;
(iii) relates to a distribution, reseller or similar arrangement and involves a remaining obligation or receipt in excess of $40,000;
(iv) relates to the purchase of goods or provision of services and involves a remaining obligation or receipt in excess of $40,000;
(v) relates to any fixed price consulting or service agreement or similar arrangement and involves a remaining obligation or receipt in excess of $40,000;
(vi) relates to or evidences outstanding indebtedness for borrowed money, including any note, bond, debenture or other evidence of indebtedness issued to any Person, that has an aggregate future liability in excess of $40,000;
(vii) grants or evidences a Lien on any of the Purchased Assets;
(viii) provides for any joint venture, partnership, strategic alliance, shareholders’ contract, co-marketing, co-promotion, co-packaging, joint development or similar arrangement;
(ix) provides for the resolution or settlement of any actual or threatened action, suit, claim, proceeding or other dispute and involves an amount in controversy in excess of $100,000; and
(x) relates to any Seller Intellectual Property or Licensed Intellectual Property;
(xi) requires in the aggregate payments after the date hereof by or to Seller of more than employment contracts$40,000;
(xii) with provides for the benefit of, or is entered into with, any current or former officer, director, stockholder, employeeemployee or consultant of Seller or, consultantto Seller’s Knowledge, agent or other representative a relative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiariesforegoing;
(xiii) Contracts which are (A) outside provides for sale of any of the assets or properties of Seller other than in the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties;
(xiv) all engagement letters is an agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with clients respect to obligations in an aggregate amount not in excess of $40,000 and other than indemnification provisions in agreements with customers in the Company or any ordinary course of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiariesbusiness;
(xv) all Contracts under which the Company contains covenants of Seller or any Transferred Employee not to compete in the Business, in any geographic area or with any Person or covenants of its Subsidiaries agrees any other Person not to indemnify compete with Seller or in any Personline of business of Seller;
(xvi) requires the payment to any Person of a brokerage or sales commission or a finder’s or referral fee (other than arrangements to pay commissions or fees to employees in the ordinary course of business); and
(xvixvii) any other material Assigned Contract which involves consideration whether or not made in excess the ordinary course of $100,000 per year.business;
(ib) Each Company Except as set forth on Schedule 3.10(b), each Assigned Contract is legal, valid, a valid and binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary agreement of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, Seller and is in full force and effect. Except as set forth in Schedule 3.10(b): (i) the enforceability and material terms of the Assigned Contracts will not be affected in any manner by, and no right of termination, amendment, acceleration or cancellation of any Assigned Contract will arise as a result of, the execution and delivery of this Agreement or any Ancillary Document, the performance by Seller of its obligations hereunder or the consummation of the transactions contemplated hereby; (ii) neither the Company nor Seller is not in default of a material provision of any of its Subsidiaries Assigned Contract, nor, to the Knowledge of the Company as of the date hereofSeller’s Knowledge, does there exist any other partyevent that, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both, would constitute a default of material provision of any Assigned Contract by Seller under any Assigned Contract; (iii) a material breach or default (or give rise to the Knowledge of Seller, no other party to any right of termination, modification, cancellation or acceleration) or loss Assigned Contract is in default in any material respect under the terms of any benefits under such Assigned Contract; and (iv) no other party to any Company Contract.
(c) The Company Assigned Contract has delivered notified Seller in writing of its intention to Parent complete and accurate copies of each Company Contract through cease to perform any services required to be performed by it or withhold any payment required to be made to it thereunder or terminate or alter the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as provisions thereof by reason of the date hereof any modification, waiver transactions contemplated herein or termination of any Company Contractotherwise. Except as set forth on Section 4.15(cSchedule 3.10(b), Seller has not waived any right under any Assigned Contract, amended or extended any Assigned Contract or failed to renew (or received notice of termination or failure to renew with respect to) any Assigned Contract. True, complete and accurate copies of all of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of Assigned Contracts have been provided to the consummation of the transactions contemplated in this AgreementBuyer by Seller.
(dc) There are no non-competition Except as set forth in Schedule 3.10(c), to Seller’s Knowledge: (i) none of Seller’s or non-solicitation agreements its Affiliates’ employees or any similar agreements or arrangements that could restrict or hinder independent contractors engaged in the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries Business is a party to any oral or written contract or agreement prohibiting it or them from freely competing or engaging in the Business except for any such agreements between Seller and such Persons; (ii) no employee of Seller or its Affiliates employed in the Business is a party to any outstanding contract, obligation or commitment with any prior employer; (iii) no employee of Seller or its Affiliates employed in the Business is a party to an employment or consulting agreement with Seller that imposes an obligation on Buyer or its Affiliates to assume or adopt such employment or consulting agreement; and (iv) no employee of Seller or its Affiliates employed in the Business is in default under any contract, obligation or commitment with any of his or her former employers, in all cases, the effect of which default has or may be subject have a Material Adverse Effect, and there is no state of facts that upon notice or bound (other than this Agreement lapse of time or pursuant to this Agreement)both would constitute such a default.
Appears in 1 contract
Sources: Asset Purchase Agreement (Tollgrade Communications Inc \Pa\)
Contracts. (a) Section 4.15(a4(k) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements to which the Company or any of its Subsidiaries Buyer is a party or by which party, except contracts and other agreements involving a potential acquisition of the Company or any of its Subsidiaries or its or their properties capital stock or assets is or may be bound as of the date hereof (collectivelyBuyer, the “Company Contracts”):which by their terms are subject to a non-disclosure covenant:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00025,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and year, result in a material loss to the Buyer, or involve consideration in excess of $100,00050,000 per year;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $25,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or non-competition, except as hereinabove provided;
(vi) any agreement involving any of the Buyer's stockholders and their Affiliates (other than the Buyer);
(vii) all partnership any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or joint venture Contractsother material plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearany collective bargaining agreement;
(ix) all Contracts relating to licenses any agreement for the employment of Intellectual Property (whether the Company any individual on a full-time, part-time, consulting, or any other basis not cancelable on 30 days or less notice providing annual compensation in excess of its Subsidiaries is the licensor $25,000 or licensee thereunder) material to the business of the Companyproviding severance benefits;
(x) all Contracts relating any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the future disposition or acquisition Ordinary Course of any business enterprise or any interest in any business enterpriseBusiness;
(xi) all Contracts between except as otherwise listed pursuant to this Section 4(k), any agreement under which the consequences of a default or among (A) the Company or any of its Subsidiaries, termination could have a material adverse effect on the one handbusiness, and (B) any Stockholder (or Holder)financial condition, such Stockholder’s Affiliate (or Holder’s Affiliate)operations, or any Related Party (results of operations of the Buyer, other than client or customer sales contracts entered into in the Company), on Ordinary Course of Business of the other handBuyer;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract agreement (or group of related agreements) the performance of which involves annual consideration in excess of $100,000 per year.
(i50,000. The Buyer has delivered to the Target a correct and complete copy of each written agreement listed in Section 4(k) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the CompanyDisclosure Schedule (as amended to date) and a written summary setting forth the material terms and conditions of each oral agreement referred to in Section 4(k) of the Disclosure Schedule. With respect to each such agreement, as the case may be, and to the Knowledge of Buyer's Knowledge: (A) the Company as of the date hereof, against each other party thereto, and agreement is in full force and effecteffect and constitutes a legal, valid and binding agreement of the Buyer, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratoriums or other similar laws affecting the enforcement of creditors' rights generally and the availability of equitable remedies (regardless of whether enforceability is considered in a proceeding at law or inequity); and (iiB) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, no party is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration) or loss of any benefits , under any Company Contractthe agreement.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Merger Agreement (View Tech Inc)
Contracts. (a) Section 4.15(aExcept as set forth in the SEC Documents or ss. 3(n) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of the following types or having the following terms to which the Company or Schedule, neither Summit nor any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):to:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00050,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current agreement concerning a partnership or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling personjoint venture;
(iii) any agreement (Aor group of related agreements) all instruments relating to under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any notecapitalized lease obligation, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,00050,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(iv) all lease, sublease, rental, license any agreement concerning confidentiality or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) monthsnoncompetition;
(v) all Contracts containing to Summit's Knowledge, any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete agreement with any other Person holder (or requiring exclusive dealings by the Company Affiliate thereof) of 5% or more of any class of securities of Summit or any of its Subsidiaries;
(vi) (A) all Contracts any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the purchase benefit of materialsits current or former directors, inventoryofficers, supplies employees or equipment consultants that is not listed in ss. 3(s) of the Disclosure Schedule;
(vii) any collective bargaining agreement;
(viii) any agreement for the employment (other than at-will employment) of any individual on a full-time, part-time, consulting, or other basis providing annual compensation in excess of $50,000 or providing severance benefits;
(ix) any agreement under which it has advanced or loaned any amount to any of its directors, officers, employees or consultants;
(x) any agreement or license relating in whole or in part to the Intangible Property of Summit (including, without limitation, computer hardware and Software)any agreement or license under which Summit has the right to use any Intangible Property owned or held by a third party) which is material to the business, financial condition or for the provision results of services, involving annual payments operations of more than $100,000, containing any escalation, renegotiation or redetermination provisions, Summit (other than Contracts standard licenses for software that are terminable within ninety (90) days without premium or penalty is commercially available to the Company public in the Ordinary Course of Business);
(xi) any agreement under which the consequences of a default or termination could have a Summit Material Adverse Effect;
(xii) any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with agreement pursuant to which material customers benefits accrue to the other party or parties to such contract as a result of the business of the Company or any of its Subsidiariestransactions contemplated by this Agreement, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), rights of termination or modification of such agreements;
(iiixiii) for any agreement (or group of related agreements) the provision performance of services which involves payment to or by the Company Summit or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1individually or collectively) year and involve consideration in excess of $100,000;50,000 per annum, except for insurance policies issued by the Insurance Subsidiaries in the Ordinary Course of Business; or
(viixiv) all partnership or joint venture Contracts;
(viiiany other material agreement not made in the Ordinary Course of Business. Summit has delivered to Liberty a correct and complete copy of each written agreement listed in ss. 3(n) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(xDisclosure Schedule and a brief written summary setting forth the terms and conditions of each oral agreement referred to in ss. 3(n) all Contracts relating of the Disclosure Schedule. With respect to the future disposition or acquisition of each such agreement and each agreement filed as a material contract with any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among SEC Documents: (A) the Company agreement is legal, valid, binding, enforceable, and in full force and effect; (B) the transactions contemplated hereby will not cause the agreement, to be illegal, invalid, non-binding, non-enforceable or not to be in full force and effect for the benefit of the Surviving Corporation on identical terms immediately subsequent to the Effective Time and consummation of such transactions contemplated hereby; (C) neither Summit, nor any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
(i) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereofSummit's Knowledge, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; (D) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or neither Summit nor any of its Subsidiaries has delivered or the use received notice of its properties a cancellation of or assets or an intent to cancel such agreement; and (E) no party has repudiated any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any provision of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement)agreement.
Appears in 1 contract
Contracts. (a) Section 4.15(aSchedule 4.16(a) lists all of the Disclosure Schedule sets forth a complete written or oral agreements, contracts, leases, purchase and accurate list sales orders, commitments, arrangements, letters of each Contract of the following types understanding or having the following terms undertakings to which the Company or any of its Subsidiaries the Asset Seller is now a party or by which any assets of the Company or any of its Subsidiaries the Asset Seller are now bound or its or their properties or assets is or may be bound as of the date hereof are subject (collectively, the “Company Contracts”):) that fall into any of the following categories:
(i) all Contracts or group of related Contracts which involve commitments to make capital expenditures or which provide for the purchase of goods or services by the Company or the Asset Seller from any one Person or group of related Persons under which the annual value of such goods or services purchased thereunder has an aggregate purchase price in excess of Twenty Five Thousand Dollars ($25,000);
(ii) Contracts or group of related Contracts which provide for the sale of goods or services by the Company or the Asset Seller to any one Person or group of related Persons under which the annual value of such goods or services sold thereunder has an aggregate sale price in excess of Twenty Five Thousand Dollars ($25,000);
(iii) Contracts relating to Indebtedness or to the granting by the Company or the Asset Seller of a Lien on its assets, or any guaranty by the Company of any obligation in respect of borrowed money or otherwise;
(iv) Contracts with dealers, distributors or sales representatives;
(v) currently binding employment Contracts with any employee, officer, consultant or management advisor (other than offer letters offering employment on an at-will basis and containing no other employment terms);
(vi) Contracts which limit the freedom of the Company or the Asset Seller to engage in any business or compete with any Person;
(vii) Contracts pursuant to which the Company or the Asset Seller is a lessor or a lessee of any personal or real property (other than the Leases), or holds or operates any tangible personal property owned by another Person, except for any such individual lease under which the aggregate annual rent or lease payments do not exceed Ten Thousand Dollars ($10,000);
(viii) equity option Contracts, warrants, convertible securities, or any other agreements for the purchase or issuance of equity of the Company or the Asset Seller;
(ix) Contracts restricting the transfer of equity of the Company or the Asset Seller, obligating the Company or the Asset Seller to issue or repurchase its equity, or relating to the equity or the election of directors of the Company or the Asset Seller;
(x) each partnership or joint venture Contract;
(xi) each Contract not included in subsection (e) providing for the employmentseverance, retention, bonus, severance change in control or other service relationship similar payments;
(xii) each Contract with a Seller or any Affiliate of a Seller or any current or former officer, director, employee, consultant stockholder or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations Affiliate of the Company or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its SubsidiariesAsset Seller;
(xiii) Contracts under which are (A) outside either the ordinary course of business for Company or the purchase, acquisition, sale Asset Seller has made advances or disposition of any assets or properties or (B) for the grant loans to any Person of any option or preferential rights to purchase any assets or propertiesother Person;
(xiv) all engagement letters each Contract containing a “most-favored nation” pricing agreement, special warranties, rebate arrangements, ▇▇▇▇-down arrangements, penalty provisions related to nonperformance of service requirements, agreements to take back or exchange goods, consignment arrangements or similar understandings with clients a customer or supplier of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its SubsidiariesAsset Seller;
(xv) all Contracts under which by and between the Company or any of its Subsidiaries agrees to indemnify any Personthe Asset Seller and a Governmental Authority; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
(i) Each Company Contract is legal, valid, binding and enforceable against that requires the Company or the party Asset Seller to such make payments in excess of Twenty-Five Thousand Dollars ($25,000) and is not terminable by the Company or the Asset Seller without penalty upon less than ninety (90) days’ prior written notice.
(b) Complete copies of each Contract which is a Subsidiary of required to be identified on Schedule 4.16(a), including amendments, waivers, or other changes thereto (collectively, the Company“Material Contracts”), as have been provided to Buyer. In the case may beof each oral Material Contract, Schedule 4.16(a) also includes a brief description of such oral Contract. Each Material Contract is legally valid and to the Knowledge of binding on and enforceable by the Company as of or the date hereofAsset Seller, against each and, To Sellers’ Knowledge, the other party thereto, and is in full force and effect, and (ii) neither each case without breaching the Company nor any of its Subsidiaries nor, to terms thereof or resulting in the Knowledge of the Company as of the date hereof, any other party, is in material breach forfeiture or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss impairment of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contractrights thereunder. Except as set forth on Section 4.15(c) Schedule 4.16(b), each of the Disclosure ScheduleCompany nor the Asset Seller has performed all obligations required to be performed by it pursuant to each Material Contract, and neither the Company nor the Asset Seller is in breach or default thereunder (and, To Sellers’ Knowledge, no Company event has occurred that, with the giving of notice, lapse of time, or both, would constitute a breach or default), and, To Sellers’ Knowledge, no other party to any Material Contract is terminable in breach or cancelable as a result default thereunder. Each of the Material Contracts will remain in full force and effect immediately upon the consummation of the transactions contemplated in by this Agreement.
(d) There are no non-competition . Except as set forth on Schedule 4.16(b), neither the Company nor the Asset Seller has received any notice of any Person’s intent to terminate or non-solicitation agreements materially amend any Material Contract. Neither the Company nor the Asset Seller has amended, canceled, terminated, relinquished, waived or released any similar agreements Material Contract or arrangements that could restrict or hinder right thereunder, except in the operations or conduct ordinary course of business and which, in the business of aggregate, would not be material to the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement)Asset Seller.
Appears in 1 contract
Sources: Membership Interest and Asset Purchase Agreement (CRAWFORD UNITED Corp)
Contracts. (a) Section Schedule 4.15(a) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms Contracts to which the Company or any of its Subsidiaries NorMedix is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts any Contract (or group of related Contracts) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,0005,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract (or group of guarantee of credit in favor of any Person or entity in excess of $100,000;
(ivrelated Contracts) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software)personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and or involve consideration in excess of $100,0005,000;
(iii) any Contract concerning a partnership or joint venture;
(iv) any Contract (or group of related Contracts) under which NorMedix has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $2,500 or under which it has imposed a Lien on any of its assets, tangible or intangible;
(v) any Contract concerning confidentiality or non-competition other than non-disclosure agreements entered into in the Ordinary Course of Business;
(vi) any Contract under which NorMedix is currently or potentially obligated to share revenues or income with any other Person;
(vii) all partnership any Contract with a Seller or joint venture Contractsany of its Affiliates;
(viii) all Contracts any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or purchase orders relating to capital expenditures involving total payments by other plan or Contract for the Company and benefit of its Subsidiaries of more than $100,000 per yearcurrent or former directors, officers, or employees;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Companycollective bargaining Contract;
(x) all Contracts relating to any Contract for the future disposition or acquisition employment of any business enterprise individual on a full-time, part-time, consulting, or any interest in any business enterpriseother basis;
(xi) all Contracts between any Contract under which NorMedix has advanced or among (A) the Company or loaned any amount to any of its Subsidiariesdirectors, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate)officers, or any Related Party employees (other than the Companytravel advances), on the other hand;
(xii) Contracts pertaining to any Contract under which the issuance consequences of debt a default or equity of the Company or any of its Subsidiariestermination would have a Material Adverse Effect;
(xiii) Contracts any Contract under which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to NorMedix has granted any Person of any option or preferential registration rights to purchase any assets or properties(including demand and piggyback registration rights);
(xiv) all engagement letters any Contract (other than Contracts with clients customers in the Ordinary Course of the Company or any of its Subsidiaries Business) under which NorMedix has agreed to indemnify any amount is other Person for any loss, expense or may become payable to the Company or any of its SubsidiariesLiability;
(xv) all Contracts except as set forth in SECTION 4.15(a)(xi), any Contract under which NorMedix has advanced or loaned any other Person amounts in the Company or any of its Subsidiaries agrees to indemnify any Personaggregate exceeding $5,000; andor
(xvi) any other Contract which involves consideration (or group of related Contracts), understanding or course of dealing that will require NorMedix to make any payment in excess of $100,000 per year2,500 after the Closing (other than in the Ordinary Course of Business).
(b) NorMedix has delivered to SurModics a correct and complete copy of each written Contract (as amended to date) listed in Schedule 4.15(a) and a written summary setting forth the terms and conditions of each oral Contract referred to in Schedule 4.15(a). With respect to each such Contract: (i) Each Company the Contract is legal, valid, binding binding, enforceable (except that the enforcement thereof may be limited by the Enforcement Limitations) and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and ; (ii) the Contract will continue to be legal, valid, binding, enforceable, (except that the enforcement thereof may be limited by the Enforcement Limitations) and in full force and effect on identical terms following the consummation of the Transactions; (iii) neither the Company nor any of its Subsidiaries NorMedix nor, to the Knowledge of the Company as of the date hereofNorMedix’s Knowledge, any other party, party is in material breach or default, and no event has occurred which could constitute (that with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the Contract; and (iv) or loss neither NorMedix nor, to NorMedix’s Knowledge, any other party has repudiated any provision of any benefits under any Company the Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(a3(n) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements currently in force to which the Company or any of its Subsidiaries Target is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts Any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,000100,000.00 Cdn per annum;
(ii) all material Contracts Any agreement (other than employment contractsor group of related agreements) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and year, result in a loss to the Target, or involve consideration in excess of $100,000500,000.00 Cdn;
(iii) Any agreement concerning a partnership or joint venture;
(iv) Any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $250,000.00 Cdn or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(v) Any agreement concerning confidentiality or noncompetition;
(vi) Any agreement involving any of the Target Owners and their Affiliate (other than the Target);
(vii) all partnership Any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or joint venture Contractsother plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearAny collective bargaining agreement;
(ix) all Contracts relating to licenses Any agreement for the employment of Intellectual Property (whether the Company any individual on a full- time, part-time, consulting, or any other basis providing annual compensation in excess of its Subsidiaries is the licensor $75,000.00 Cdn or licensee thereunder) material to the business of the Companyproviding termination or severance benefits;
(x) all Contracts relating Any agreement under which it has advanced or loaned any amount to any of its Target Owners, officers, and employees outside the future disposition or acquisition Ordinary Course of any business enterprise or any interest in any business enterpriseBusiness;
(xi) all Contracts between Any agreement under which the consequences of a default or among (A) the Company or any of its Subsidiaries, termination could have a material adverse effect on the one handbusiness, and (B) any Stockholder (or Holder)financial condition, such Stockholder’s Affiliate (or Holder’s Affiliate)operations, results of operations, or any Related Party (other than future prospects of the Company), Target by reducing gross revenue of Target by 5% or more based on the other hand;12 month earnings of Target ending March 31, 1996; or
(xii) Contracts pertaining to Any other agreement (or group of related agreements) the issuance performance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
500,000.00 Cdn. With respect to each agreement listed in Section 3(n) of the Disclosure Schedule: (iA) Each Company Contract the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect; (B) except as listed in Section 3(n), the agreement will continue to be legal, valid, binding, enforceable, and (ii) neither in full force and effect on identical terms following the Company nor any of its Subsidiaries nor, to the Knowledge consummation of the Company as of transactions contemplated hereby (including the date hereof, any other party, assignments and assumptions referred to in Section 2 above); (C) no party is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (D) or loss of no party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Form 8 K
Contracts. (a) Section Schedule 4.15(a) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms Contracts to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts any Contract (or group of related Contracts) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00050,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract (or group of guarantee of credit in favor of any Person or entity in excess of $100,000;
(ivrelated Contracts) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software)personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and or involve consideration in excess of $100,00050,000;
(iii) any Contract concerning a partnership or joint venture;
(iv) any Contract (or group of related Contracts) under which the Company has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, or under which it has otherwise imposed an Encumbrance on any of its assets, tangible or intangible;
(v) any Contract concerning confidentiality or non-competition, other than non-disclosure agreements entered into in the Ordinary Course of Business;
(vi) any Contract under which the Company is currently or potentially obligated to share revenues or income with any other Person (including Sellers or any of their Affiliates);
(vii) all partnership any Contract with Sellers or joint venture Contractsany of their Affiliates;
(viii) all Contracts any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or purchase orders relating to capital expenditures involving total payments by other plan or Contract for the Company and benefit of its Subsidiaries of more than $100,000 per yearcurrent or former directors, officers, or employees;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Companycollective bargaining Contract;
(x) all Contracts relating to any Contract for the future disposition or acquisition employment of any business enterprise individual on a full-time, part-time, consulting, or any interest in any business enterpriseother basis;
(xi) all Contracts between or among (A) any Contract under which the Company has advanced or loaned any amount to any of its Subsidiariesdirectors, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate)officers, or any Related Party (other than employees outside the Company), on the other handOrdinary Course of Business;
(xii) Contracts pertaining to any Contract under which the issuance consequences of debt a default or equity of the Company or any of its Subsidiariestermination would have a Material Adverse Effect;
(xiii) Contracts any Contract under which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to Company has granted any Person of any option or preferential registration rights to purchase any assets or properties(including demand and piggyback registration rights);
(xiv) all engagement letters any Contract (other than Contracts with clients customers in the Ordinary Course of Business) under which the Company has agreed to indemnify any other Person for any loss, expense or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its SubsidiariesLiability;
(xv) all Contracts any Contract under which the Company has advanced or loaned any of its Subsidiaries agrees to indemnify any Person; andother Person amounts in the aggregate exceeding $25,000;
(xvi) any Contract under which the Company has received any Tax credit, incentive, abatement, grant or similar benefit from a Governmental Authority that includes a “clawback” or recapture provision, or any other Contract under which involves consideration the Company may be required to repay a benefit received from a Governmental Authority; or
(xvii) any other Contract (or group of related Contracts), understanding or course of dealing that will require the Company to make any payment in excess of $100,000 per year.
50,000 after the Closing (other than in the Ordinary Course of Business). (b) Sellers have delivered to Buyer a correct and complete copy of each written Contract (as amended to date) listed in Schedule 4.15(a) and a written summary setting forth the terms and conditions of each oral Contract referred to in Schedule 4.15(a). With respect to each such Contract, except as set forth in Schedule 4.15(b): (i) Each Company the Contract is legal, valid, binding binding, enforceable (except that the enforcement thereof may be limited by the Enforcement Limitations) and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and ; (ii) the Contract will continue to be legal, valid, binding, enforceable, (except that the enforcement thereof may be limited by the Enforcement Limitations) and in full force and effect on identical terms following the consummation of the Transactions; (iii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereofSellers’ Knowledge, any other party, party is in material breach or default, and no event has occurred which could constitute (that with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the Contract; and (iv) or loss neither the Company, nor to Sellers’ Knowledge, any other party has repudiated any provision of any benefits under any Company the Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(a4(o) of the Disclosure Schedule sets forth a complete lists the following contracts and accurate list of each Contract other agreements to which any of the following types or having the following terms to which the Company or any of and its Subsidiaries is a party party:
i. any agreement (or by which the Company or any group of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):
(irelated agreements) all Contracts providing for the employment, retention, bonus, severance lease of personal property to or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of from any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 50,000 per annum and a term of at least twelve (12) monthsannum;
ii. any agreement (vor group of related agreements) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year year, result in a loss to any of the Company and its Subsidiaries, or involve consideration in excess of $100,00050,000;
(vii) all iii. any agreement concerning a partnership or joint venture Contractsventure;
iv. any agreement (viiior group of related agreements) all Contracts under which it has created, incurred, assumed, or purchase orders relating to capital expenditures involving total payments by guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $50,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
v. any agreement concerning confidentiality or noncompetition;
vi. any agreement with the Seller or any of his Affiliates (other than the Company and its Subsidiaries of more than $100,000 per yearSubsidiaries);
(vii. any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of its current or former directors, officers, and employees;
viii. any collective bargaining agreement;
ix) all Contracts relating . any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis providing annual compensation in excess of $50,000 or providing severance benefits;
x. any agreement under which it has advanced or loaned any amount to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is directors, officers, and employees outside the licensor or licensee thereunder) material to the business Ordinary Course of the CompanyBusiness;
(x) all Contracts relating to xi. any agreement under which the consequences of a default or termination could have a material adverse effect on the business, financial condition, operations, results of operations, or future disposition or acquisition prospects of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
xii. any other agreement (or group of related agreements) the performance of which involves consideration in excess of $50,000; and
xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale . any agreement or disposition of any assets or properties or (B) for the grant arrangement pursuant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees acts as agent, general agent, master general agent, marketing agent or in a similar capacity for any insurance company. The Seller has delivered or made available to indemnify any Person; and
the Buyer a correct and complete copy of each written agreement listed in Section 4(o) of the Disclosure Schedule (xvias amended to date) any other Contract which involves consideration and a written summary setting forth the terms and conditions of each oral agreement referred to in excess Section 4(o) of $100,000 per year.
the Disclosure Schedule. With respect to each such agreement: (iA) Each Company Contract the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable, and (ii) neither in full force and effect on identical terms following the Company nor any of its Subsidiaries nor, to the Knowledge consummation of the Company as of the date hereof, any other party, transactions contemplated hereby; (C) no party is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (D) or loss of no party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Stock Purchase Agreement (Penn Treaty American Corp)
Contracts. (a) Section 4.15(a3(p) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of Letter lists the following types or having the following terms contracts and other agreements to which the Company or any of its Subsidiaries is a party or by which (excluding those included within the Company or any definition of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”Excluded Assets):
(i) all Contracts Any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,000the Threshold Amount per annum;
(ii) all material Contracts Any agreement (other than employment contractsor group of related agreements) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and or involve consideration in excess of $100,000the Threshold Amount;
(viiiii) all Any agreement concerning a partnership or joint venture Contractsventure;
(viiiiv) all Contracts Any agreement (or purchase orders relating to capital expenditures involving total payments by group of related agreements) under which the Company and has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of the Threshold Amount or under which it has imposed a Lien on any of its Subsidiaries of more than $100,000 per yearassets, tangible or intangible;
(ixv) all Contracts relating to licenses of Intellectual Property (whether the Company Any agreement concerning confidentiality or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Companynon-competition;
(xvi) Any agreement involving any or all Contracts relating to of the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its SubsidiariesParent Company, on the one hand▇▇▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇, and (B) any Stockholder (or Holder)and/or his, such Stockholder’s Affiliate (or Holder’s Affiliate)her, or any Related Party its Affiliates (other than the Company);
(vii) Any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) Any collective bargaining agreement;
(ix) Any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis providing annual compensation in excess of the other handThreshold Amount or providing material severance benefits;
(x) Any agreement under which the Company has advanced or loaned any amount to any of its directors, officers, and employees outside the Ordinary Course of Business;
(xi) Any agreement under which the consequences of a default or termination could have a Material Adverse Effect;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or Any agreement under which it has granted any of its SubsidiariesPerson any registration rights (including, without limitation, demand and piggyback registration rights);
(xiii) Contracts Any settlement, conciliation or similar agreement with any governmental entity or which are (A) outside will involve payment after the ordinary course execution date of business for this Agreement of consideration in excess of the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or propertiesThreshold Amount;
(xiv) all engagement letters with clients of Any agreement under which the Company has advanced or loaned any of its Subsidiaries under which any amount is or may become payable to other Person amounts in the Company or any of its Subsidiaries;aggregate exceeding the Threshold Amount; or
(xv) all Contracts under which Any other agreement (or group of related agreements) the Company or any performance of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
the Threshold Amount. The Company has delivered to the Buyer a correct and complete copy of each written agreement listed in §3(p) of the Disclosure Letter (ias amended to date) Each Company Contract and a written summary setting forth the material terms and conditions of each oral agreement referred to in §3(p) of the Disclosure Letter. With respect to each such agreement: (A) the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and effect in all material respects; (iiB) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, no party is in material breach or default, and no event has occurred which could constitute (that with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (C) or loss of any benefits under any Company Contract.
(c) The Company no party has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or repudiated any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. With respect to each of the contracts listed in Section 4(m) of the Disclosure Schedule: (aA) the agreement is legal, valid, binding, enforceable, and in full force and effect as to the Company; (B) neither the Company nor, to the Knowledge of the Seller Entities, any other party is in material breach or default, and to the Knowledge of the Seller Entities, no event has occurred which with notice or lapse of time would constitute a material breach or default, or permit termination, modification, or acceleration, under the agreement; and (C) to the Knowledge of the Seller Entities, no party has repudiated any material provision of the agreement. Section 4.15(a4(m) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having contracts and other agreements in effect on the following terms date hereof to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts providing any agreement (or group of related agreements) for the employment, retention, bonus, severance lease of real or other service relationship with any current personal property to or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of from any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) monthsannum;
(vii) all Contracts containing any covenant agreement (or provision limiting the freedom or ability group of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(virelated agreements) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and or involve consideration in excess of $100,000;
(viiiii) all partnership any agreement (or joint venture Contractsgroup of related agreements) under which the Company has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $100,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible, other than the Bank Guarantee and the Security Agreement;
(viiiiv) all Contracts any written agreement concerning confidentiality or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearnoncompetition;
(ixv) all Contracts relating to licenses of Intellectual Property (whether the Company any agreement with a Seller Entity or any of its Subsidiaries is the licensor or licensee thereunder) material to the business another Affiliate of the Company;
(vi) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the benefit of its current or former directors, officers, and employees;
(vii) any collective bargaining agreement (each a “Collective Bargaining Agreement” and collectively the “Collective Bargaining Agreements”);
(viii) any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis providing annual compensation in excess of $100,000 or providing severance benefits;
(ix) any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the Ordinary Course of Business;
(x) all Contracts relating any agreement under which the consequences of a default or termination would reasonably be expected to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;have a Material Adverse Effect; or
(xi) all Contracts between any other agreement (or among (Agroup of related agreements) the Company or any performance of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per yearin the aggregate.
(i) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(a4(p) of the Disclosure Schedule sets forth a complete lists the following contracts and accurate list of each Contract other agreements to which any of the following types or having the following terms to which the Company or any of its Subsidiaries Target is a party or by and which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):currently in effect:
(i) all Contracts providing any agreement (or group of related agreements) for the employment, retention, bonus, severance lease of personal property to or other service relationship with from any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000Person;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of raw materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materialscommodities, supplies, inventory or equipment (including, without limitation, computer hardware and Software)products, or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services)other personal property, the performance of which will extend over a period of more than one year;
(1iii) year any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any agreement with any of the Sellers and involve consideration in excess of $100,000their Affiliates (other than the Target);
(vii) all partnership any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or joint venture Contractsother plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearany collective bargaining agreement;
(ix) all Contracts relating to licenses any agreement for the employment of Intellectual Property (whether the Company any individual on a full-time, part-time, consulting, or any other basis providing annual compensation in excess of its Subsidiaries is the licensor $50,000 or licensee thereunder) material to the business of the Companyproviding severance benefits;
(x) all Contracts relating any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the future disposition or acquisition Ordinary Course of any business enterprise or any interest in any business enterpriseBusiness;
(xi) all Contracts between any agreement under which the consequences of a default or among termination could reasonably be expected to result in a Material Adverse Effect; or
(xii) any other agreement (or group of related agreements). The Sellers have delivered to the Buyer a correct and complete copy of each written agreement listed in Section 4(p) of the Disclosure Schedule (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Section 4(p) of the Disclosure Schedule. With respect to each such agreement: (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per year.
(i) Each Company Contract agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, full force and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth effect on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of identical terms following the consummation of the transactions contemplated in this Agreement.
hereby; (dC) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder to the operations or conduct Knowledge of the business Sellers, (x) no party is in breach or default in any material respect, and (y) no event has occurred which with notice or lapse of time would constitute a material breach or default, or permit termination, modification, or acceleration, under the agreement; and (D) no party has repudiated in writing any provision of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement)agreement.
Appears in 1 contract
Contracts. (i) Section 3.18 of the TeamStaff Disclosure Schedule lists the following contracts and other agreements to which TeamStaff is a party:
(a) Section 4.15(aany agreement (or group of related agreements) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of the following types or having the following terms to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):
(i) all Contracts providing for the employment, retention, bonus, severance lease of personal property to or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of from any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 50,000 per annum and a term of at least twelve (12) monthsannum;
(vb) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety contracts for PEO services entered into in the Ordinary Course of Business, any agreement (90) days without premium or penalty to the Company or any group of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (iirelated agreements) for the sale by the Company furnishing or any receipt of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and year, result in a loss to any of TeamStaff in excess of $50,000, or involve consideration in excess of $100,00050,000;
(viic) all any agreement concerning a partnership or joint venture Contractsventure;
(viiid) all Contracts any agreement (or purchase orders relating to capital expenditures involving total payments by the Company and group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $50,000 or under which it has imposed a Security Interest on any of its Subsidiaries of more than $100,000 per yearassets, tangible or intangible;
(ixe) all Contracts relating any agreement concerning confidentiality or noncompetition, other than agreements arising in the Ordinary Course of Business in contracts with PEO clients, employees, vendors or licensors of software products;
(f) any agreement with any of TeamStaff shareholders and their Affiliates;
(g) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of its current or former directors, officers, and employees;
(h) any collective bargaining agreement;
(j) other than a contract for PEO Services in the Ordinary Course of Business, any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis providing annual compensation in excess of $50,000 or providing severance benefits;
(k) any agreement under which it has advanced or loaned in excess of $5,000 to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor directors, officers or licensee thereunder) material to the business of the Companyemployees;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (Bl) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts agreement under which the Company consequences of a default or any of its Subsidiaries agrees to indemnify any Persontermination could have a TeamStaff Material Adverse Effect; andor
(xvim) other than a contract for PEO Services in the Ordinary Course of Business, any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year50,000.
(i) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. (a) Section 4.15(a4(p) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of Letter lists the following types or having the following terms contracts and other agreements to which the Company or any of its Subsidiaries SMS is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property (other than capitalised lease obligations) to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,000Fifteen Thousand Sterling ((pound)15,000) per annum;
(ii) all material Contracts (other than employment contractsagreements and contracts with customers, as to which Three Hundred Thousand Sterling ((pound)300,000.00) with any current or former officer, director, stockholder, employee, consultant, agent or other representative shall be the disclosure threshold for section 4(p) of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed moneyDisclosure Letter, any note, bond, deed agreement (or group of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and year, result in a material loss to SMS, or involve consideration in excess of $100,000Fifteen Thousand Sterling ((pound)15,000);
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of Fifteen Thousand Sterling ((pound)15,000);
(v) any agreement concerning confidentiality or noncompetition other than standard provisions in contracts with SMS's customers;
(vi) any agreement with the Seller and his Affiliates (other than SMS and its Affiliates);
(vii) all partnership any profit sharing, stock option, stock purchase, phantom stock, stock appreciation, deferred compensation, severance, or joint venture Contractsother material plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearany collective bargaining agreement;
(ix) all Contracts relating to licenses any agreement for the employment of Intellectual Property any individual on a full-time, part-time, consulting, or other basis providing annual compensation in excess of Fifteen Thousand Sterling (whether the Company (pound)15,000) or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Companyproviding severance benefits in excess Fifteen Thousand Sterling ((pound)15,000);
(x) all Contracts relating any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the future disposition or acquisition Ordinary Course of any business enterprise or any interest in any business enterpriseBusiness;
(xi) all Contracts between any agreement, which if terminated could have a material adverse effect on the business, financial condition, operations, or among (A) the Company future prospects of SMS, in respect of which SMS or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;parties to the agreement is in default or has served notice to terminate the same or in respect of which, to the Knowledge of the Seller, there exist any circumstances whereby any such agreement may be prematurely validly terminated or rescinded by any of such parties; or
(xii) Contracts pertaining to the issuance of debt other than agreements or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchasecontracts with customers, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.
Fifteen Thousand Sterling (i(pound)15,000). The Seller has delivered to Kend▇▇ ▇ ▇orrect and complete copy of each written agreement listed in section 4(p) Each Company Contract is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, Disclosure Letter (as amended to date) and a written summary setting forth the case may be, terms and conditions of each oral agreement referred to in ss.4(p) of the Disclosure Letter. With respect to each such agreement: (A) to the Knowledge of the Company as of Seller, the date hereof, against each other party thereto, and agreement is in full force and effect, and ; (iiB) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as Seller, the agreement will continue to be in full force and effect on identical terms following the consummation of the date hereoftransactions contemplated hereby; (C) to the Knowledge of the Seller, any other party, no party is in material breach or material default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (material default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (D) or loss of no party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contractagreement. Except as set forth on Section 4.15(clisted in section 4(p) of the Disclosure ScheduleLetter, no Company Contract SMS is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is not a party to any contract or may be subject or bound (other than this Agreement or pursuant agreement, relating to this Agreement)provision by SMS of services, with any applicable governmental authority.
Appears in 1 contract
Sources: Share Purchase Agreement (Kendle International Inc)
Contracts. (a) Section 4.15(a) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of 3.17 lists the following types or having the following terms Contractual --------- ------------- Obligations to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(ia) all Contracts providing any Contractual Obligation (or group of related Contractual Obligations) for the employment, retention, bonus, severance lease of personal property to or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of from any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months25,000;
(vb) all Contracts containing any covenant Contractual Obligation (or provision limiting the freedom or ability group of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(virelated Contractual Obligations) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and or result in a material loss to the Company or involve consideration in excess of $100,00025,000;
(viic) all any Contractual Obligation concerning a partnership or joint venture Contractsventure;
(viiid) all Contracts any Contractual Obligation (or purchase orders relating to capital expenditures involving total payments by group of related Contractual Obligations) under which it has created, incurred, assumed, or guaranteed any Debt in excess of $25,000 or under which it has imposed a Lien on any of its assets, tangible or intangible;
(e) any Contractual Obligation concerning confidentiality or noncompetition;
(f) any Contractual Obligation between or among the Company and any of its Subsidiaries of more than $100,000 per yearAffiliates;
(ixg) all Contracts relating any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of its current or former directors, officers, and employees;
(h) any collective bargaining agreement;
(i) any written Contractual Obligation providing for the employment or consultancy with any individual on a full time, part time, consulting or other basis in excess of $25,000 or any Contractual Obligation providing for severance or retirement benefits;
(j) any Contractual Obligation under which it has advanced or loaned any amount to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is stockholders, Affiliates, directors, officers, or employees other than in the licensor or licensee thereunder) material to the business Ordinary Course of the CompanyBusiness;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (Bk) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts Contractual Obligation under which the Company consequences of a default or any of its Subsidiaries agrees termination is reasonably likely to indemnify any Personhave a Material Adverse Effect; andor
(xvil) any other Contract Contractual Obligation (or group of related Contractual Obligations) the performance of which involves consideration in excess of $100,000 per year.
25,000. The Company has delivered to the Buyer a complete copy of each written Contractual Obligation listed in Schedule 3.17 (as amended to date) and a ------------- written summary setting forth the terms and conditions of each oral Contractual Obligation referred to in Schedule 3.17. Except as disclosed in Schedule 3.17, ------------- ------------- with respect to each Contractual Obligation required to be listed on Schedule -------- 3.17: (i) Each Company Contract the Contractual Obligation is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is ---- in full force and effect, and ; (ii) neither subject to the Company nor any obtaining the necessary consents disclosed in Schedule 3.28, the Contractual Obligation will continue to ------------- be legal, valid, binding, enforceable, and in full force and effect on substantially identical terms following the consummation of its Subsidiaries northe Transactions (including the assignments and assumptions referred to in Section 2 above); (iii) the Company is not and, to the Knowledge of the Company as of the date hereofSeller's Knowledge, any no other party, party is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the Contractual Obligation; and (iv) or loss of any benefits under any Company Contract.
(c) The the Company has delivered not and, to Parent complete and accurate copies of each Company Contract through the date hereof and there Seller's Knowledge, no other party has been no material modification, waiver or termination of repudiated any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this AgreementContractual Obligation.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Asset Purchase Agreement (Nu Horizons Electronics Corp)
Contracts. (a) Section 4.15(a3.2(n) of the VBV Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms agreements to which the Company VBV or any of its Subsidiaries either VBV Subsidiary is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00010,000 per annum;
(ii) all material Contracts any agreement (other than employment contractsor group of related agreements) with any current relating to development, production, marketing or former officer, director, stockholder, employee, consultant, agent or other representative distribution of the Company VBV Plants, or the products and services of VBV or the VBV Subsidiaries and any products licensed by VBV or the VBV Subsidiaries, including agreements for the purchase or sale of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed moneygrain, any notedistillers grains, bond, deed of trust, mortgage, indenture or agreement to borrow moneyethanol, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liensraw materials, commodities, supplies, or (B) any Contract of guarantee of credit in favor of any Person products or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software)personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one 60 days;
(1iii) year any hedging contract that extends out more than 60 days or involves a quantity of grain, ethanol or distillers grains in excess of 60 days’ production;
(iv) any agreement concerning a partnership or joint venture;
(v) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $50,000 or under which it has imposed a Lien on any of its assets, tangible or intangible;
(vi) any material agreement concerning confidentiality or restricting or purporting to restrict VBV’s or any VBV Subsidiary’s ability to compete in any line of business, geographic market or customer segment, or containing any “standstill” or similar restrictions on a Person’s right to acquire equity interests in VBV or any VBV Subsidiary;
(vii) any material agreement with any of its Affiliates (other than its Subsidiaries);
(viii) any profit sharing, option, equity purchase, deferred compensation, severance, or other material plan or arrangement for the benefit of its current or former managers, officers, and employees;
(ix) any collective bargaining agreement;
(x) any agreement for the employment of any individual on a full-time, part-time, consulting, or other basis providing annual compensation in excess of $100,000 or providing material severance benefits;
(xi) any agreement under which it has advanced or loaned any amount to any of its managers, officers, and employees outside the Ordinary Course of Business;
(xii) any agreement under which the consequences of a default or termination could have a Material Adverse Effect;
(xiii) any agreement under which it has granted any Person any registration rights;
(xiv) any settlement, conciliation or similar agreement with any Governmental Entity or which will involve payment after the Most Recent Fiscal Month End of consideration in excess of $100,000;
(vii) all partnership or joint venture Contracts;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;
(x) all Contracts relating to the future disposition or acquisition of any business enterprise or any interest in any business enterprise;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries50,000;
(xv) all Contracts any agreement under which VBV or either VBV Subsidiary has advanced or loaned any other Person amounts in the Company or any of its Subsidiaries agrees to indemnify any Personaggregate exceeding $50,000; andor
(xvi) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.
100,000. VBV has delivered to Green Plains a correct and complete copy of each written agreement listed in Section 3.2(n) of the VBV Disclosure Schedule and a written summary setting forth the material terms and conditions of each oral agreement referred to in Section 3.2(n) of the VBV Disclosure Schedule. With respect to each such agreement, (iA) Each Company Contract the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, effect in all material respects; and (iiB) neither the Company nor none of VBV, any of its Subsidiaries noror, to the Knowledge of the Company as of the date hereofVBV, any other party, party thereto is in material breach violation of or default, and no event has occurred in default under (nor does there exist any condition which could constitute (with or without notice or lapse upon the passage of time or both) the giving of notice or both would cause such a material breach violation of or default (by VBV or give rise either VBV Subsidiary or, to the Knowledge of VBV, any right of terminationother party thereto under) any agreement, modificationcontract, cancellation lease, license, instrument or acceleration) other arrangement to which it is a party or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company by which it or any of its Subsidiaries or the use of its properties or other assets is bound, except for violations or any “earn-out” agreements defaults that, individually or arrangements (or any similar agreements or arrangements) in the aggregate, have not had and are not reasonably likely to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is have a party or may be subject or bound (other than this Agreement or pursuant to this Agreement)Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Green Plains Renewable Energy, Inc.)
Contracts. (a) Section 4.15(ass.3(p) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements to which the Company or any of its Subsidiaries either Seller is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00010,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and year, result in a loss to either Seller, or involve consideration in excess of $100,00010,000;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $10,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any agreement involving any of the Seller Stockholders and their Affiliates (other than the Sellers);
(vii) all partnership any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or joint venture Contractsother plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearany collective bargaining agreement;
(ix) all Contracts relating to licenses any agreement for the employment of Intellectual Property (whether the Company any individual on a full-time, part-time, consulting, or any other basis providing annual compensation in excess of its Subsidiaries is the licensor $20,000 or licensee thereunder) material to the business of the Companyproviding severance benefits;
(x) all Contracts relating any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the future disposition or acquisition Ordinary Course of any business enterprise or any interest in any business enterpriseBusiness;
(xi) all Contracts between any agreement under which the consequences of a default or among (A) the Company or any of its Subsidiaries, termination could have an adverse effect on the one handbusiness, and (B) any Stockholder (or Holder)financial condition, such Stockholder’s Affiliate (or Holder’s Affiliate)operations, results of operations, or any Related Party (other than the Company), on the other hand;future prospects of either Seller; or
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.
10,000. The Sellers have delivered to the Buyer a correct and complete copy of each written agreement listed in ss.3(p) of the Disclosure Schedule (ias amended to date) Each Company Contract and a written summary setting forth the terms and conditions of each oral agreement referred to in ss.3(p) of the Disclosure Schedule. With respect to each such agreement: (A) the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable, and (ii) neither in full force and effect on identical terms following the Company nor any of its Subsidiaries nor, to the Knowledge consummation of the Company as of transactions contemplated hereby (including the date hereof, any other party, assignments and assumptions referred to in ss.2 above); (C) no party is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (D) or loss of no party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Asset Purchase Agreement (Source Information Management Co)
Contracts. (a) Section 4.15(a3.15(a) of the Disclosure Schedule sets forth Schedules contains a true, complete and accurate list of each Contract of the following types or having the following terms to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof of this Agreement, and the Company has made available to Purchaser true and complete copies, of each of the following Contracts (excluding any Employee Plans listed in Section 3.11(a) of the Disclosure Schedules and that are not required to be disclosed pursuant to Section 3.15(a)(iii) below) to which any Target Company is a party (collectively, the “Company Material Contracts”):
(i) all Contracts providing for pursuant to which a Target Company has completed a material business acquisition within the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company last three (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a3) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000years;
(ii) all material Contracts (other than employment contracts) collective bargaining agreements with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling personlabor union;
(iii) (A) all instruments relating to indebtedness Contracts for borrowed money, any note, bond, deed of trust, mortgage, indenture the employment or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor engagement of any officer, director, manager, employee or independent contractor of any Target Company pursuant to which the annual compensation with respect to such Person is equal to or entity in excess of greater than $100,000150,000;
(iv) all leasebonds, subleasedebentures, rentalnotes, license loans, credit or loan agreements or loan commitments, mortgages, indentures or other similar Contracts under which the any Target Company has incurred Indebtedness in an amount greater than $50,000 or that has caused an Encumbrance to be placed on any of its Subsidiaries is a lessor Target Company’s assets or lessee of any real property or the guarantee of any such lease, sublease, rental or properties (other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) monthsthan Permitted Encumbrances);
(v) all Contracts containing under which any covenant Target Company is lessee of, or provision limiting the freedom holds or ability of the Company or operates, any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with personal property owned by any other Person or requiring exclusive dealings by party, for which the Company or any of its Subsidiariesannual payments exceeds $200,000;
(vi) (A) all Contracts under which any Target Company is lessor of or permits any third party to hold or operate any personal property for which the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than exceeds $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000200,000;
(vii) all partnership or joint venture ContractsReal Property Leases;
(viii) all Contracts under which any material rights in or purchase orders relating to capital expenditures involving total Intellectual Property (including any license, sublicense or covenant not to sue) have been granted which require the Target Companies to make annual payments by the Company and its Subsidiaries in excess of more than $100,000 per year(other than “off the shelf” software licenses);
(ix) all Contracts relating involving a remaining commitment by any Target Company to licenses pay any individual capital expenditure or series of Intellectual Property related capital expenditures in excess of $200,000 (whether excluding purchase orders entered into in the Company or any ordinary course of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Companybusiness);
(x) all Contracts relating to that (A) restrict or prohibit any Target Company from engaging with any Person, in any line of business, or from freely engaging in business anywhere in the future disposition or acquisition world, (B) restrict the ability of any business enterprise Target Company to hire or solicit any Person (other than non-disclosure Contracts entered into in the ordinary course of business), or (C) grant the other party to such Contract “most favored nation”, favored customer, or similar status or any interest in any business enterprisetype of special discount rights;
(xi) all Contracts between or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party currently in effect (other than purchase orders providing for sales of products or services in the Company), on the other handordinary course of business) with any Material Customer or Material Supplier;
(xii) all Contracts pertaining to the issuance of debt with distributors, contract manufacturers or equity of the Company or any of its Subsidiariessales representatives;
(xiii) all Contracts which are (A) outside the ordinary course that require a Target Company to purchase all or a portion of business for the purchase, acquisition, sale or disposition its requirements of any assets product or properties service from a third party, or (B) for the grant to any Person containing a right of any option first refusal or first offer or similar preferential rights right to purchase or acquire any assets right, asset, property or propertiesequity securities of a Target Company;
(xiv) all engagement letters with clients Contracts providing for (A) a Target Company to be the exclusive provider of any product or service to any Person, or (B) any Person to be the Company exclusive provider of any product or any of its Subsidiaries under which any amount is or may become payable service to the Company or any of its Subsidiariesa Target Company;
(xv) all Contracts under which the Company for any joint venture, partnership or any of its Subsidiaries agrees to indemnify any Person; andsimilar arrangement by a Target Company;
(xvi) any other Contract which involves consideration that requires a Target Company to indemnify any Person (excluding (A) indemnities contained in agreements for the purchase, sale or license of products or services entered into in the ordinary course of business and (B) any Governing Documents of any Target Company);
(xvii) all Contracts currently in effect with any Governmental Authority;
(xviii) all Contracts granting a power of attorney to any Person;
(xix) all Contracts that (A) are not cancellable by a Target Company on notice of ninety (90) or fewer days and (B) expressly provide for aggregate annual payments by such Target Company in excess of $100,000 per year200,000;
(xx) all Contracts under which any Target Company has advanced or loaned any funds to any of its directors, managers, officers, employees or independent contractors; and
(xxi) all Contracts required to be disclosed on Section 3.25 of the Disclosure Schedules.
(ib) Each Contract identified on Section 3.15(a) of the Disclosure Schedules is in full force and effect and is a valid and binding agreement of the applicable Target Company Contract is legalor Target Companies, validas applicable, binding in accordance with its terms and enforceable against the applicable Target Company or the party to such Company Contract which is a Subsidiary of the CompanyTarget Companies, as the case may beapplicable, and to the Knowledge of the Company as of the date hereofCompany, against each other party thereto, subject to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance and is in full force other similar Laws and effectprinciples of equity affecting creditors’ rights and remedies generally (the “General Enforceability Exceptions”). There does not exist under any Material Contract any material violation, and (ii) neither breach or event of default, or alleged material violation, breach or event of default, or event or condition that, after notice or lapse of time or both, would constitute a material violation, breach or event of default thereunder on the Company nor any part of its Subsidiaries the Target Companies nor, to the Knowledge of the Company, each other party thereto. No Target Company as nor, to the Knowledge of the date hereofCompany, any other partyparty to any Material Contract has repudiated or failed to perform in any material respect any provision of any such Material Contract. No Target Company has, is in material breach the last two (2) years, received written notice that any other party to a Material Contract intends to cancel, terminate, not renew or defaultmaterially amend such Material Contract, and to the Company’s Knowledge, no event has occurred which could constitute other party to a Material Contract has, in the last two (with 2) years, threatened to terminate, cancel, not renew or without notice or lapse of time or both) a material breach or default (or give rise to materially amend any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Material Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Securities Purchase Agreement (Applied Industrial Technologies Inc)
Contracts. (a) Section 4.15(a3(p) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements to which the Company or any of its Subsidiaries Seller is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of $50,00010,000 per annum;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and year, result in a loss to Seller, or involve consideration in excess of $100,00010,000;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which Seller has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $10,000 or under which Seller has imposed a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any agreement involving any of Seller Stockholders and their Affiliates (other than Seller);
(vii) all partnership any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or joint venture Contractsother plan or arrangement for the benefit of Seller's current or former directors, officers, and employees;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearany collective bargaining agreement;
(ix) all Contracts relating to licenses any agreement for the employment of Intellectual Property (whether the Company any individual on a full-time, part-time, consulting, or any other basis providing annual compensation in excess of its Subsidiaries is the licensor $20,000 or licensee thereunder) material to the business of the Companyproviding severance benefits;
(x) all Contracts relating any agreement under which Seller has advanced or loaned any amount to any of its directors, officers, and employees outside the future disposition or acquisition Ordinary Course of any business enterprise or any interest in any business enterpriseBusiness;
(xi) all Contracts between any agreement under which the consequences of a default or among (A) the Company or any of its Subsidiaries, termination could have an adverse effect on the one handbusiness, and (B) any Stockholder (or Holder)financial condition, such Stockholder’s Affiliate (or Holder’s Affiliate)operations, results of operations, or any Related Party (other than the Company), on the other hand;future prospects of Seller; or
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.
10,000. Seller has delivered to Buyer a correct and complete copy of each written agreement listed in Section 3(p) of the Disclosure Schedule (ias amended to date) Each Company Contract and a written summary setting forth the terms and conditions of each oral agreement referred to in Section 3(p) of the Disclosure Schedule. With respect to each such agreement: (A) the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated hereby (iiincluding the assignments and assumptions referred to in Section 2 above); (C) neither the Company nor any of its Subsidiaries Seller nor, to the Knowledge of the Company as of the date hereofSeller, any other party, party is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (D) or loss of no party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Asset Purchase Agreement (Source Information Management Co)
Contracts. (a) Set forth in Section 4.15(a) 5.14 of the Seller Disclosure Schedule sets forth Letter is a correct and complete and accurate list of each Contract of the following types or having the following terms of executory Contracts (other than Excluded Assets and Government Contracts) to which the any Acquired Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectivelyeach, the a “Company ContractsMaterial Contract”):
(i) all Contracts providing any Contract that requires the payment by any party in excess of, or a series of payments that in the aggregate exceed, $250,000 or provides for the employmentdelivery of goods or the performance of services, retentionor any combination thereof, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder having a value in excess of $50,000250,000;
(ii) all material Contracts (other than employment contracts) any Contract with any current or former officera sales representative, directormanufacturer’s representative, stockholderdistributor, employeebroker, consultantsales agency, agent advertising agency or other representative of the Company Person engaged in sales, distributing or promotional activities or any of its Subsidiaries or with an entity in which any Contract to act as one of the foregoing is a controlling personon behalf of any Person;
(iii) (A) all instruments relating any Contract pursuant to which any Acquired Company has made or will make loans or advances or has or will have incurred indebtedness for borrowed money, money or become a guarantor or surety or pledged its credit for or otherwise become responsible with respect to any note, bond, deed undertaking of trust, mortgage, indenture another Person (except for the negotiation or agreement to borrow money, and any agreement relating to collection of negotiable instruments in transactions in the extension ordinary course of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000business);
(iv) all leaseany Contract involving a partnership, sublease, rental, license joint venture or other Contracts under which similar agreement regarding the Company or any sharing of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) monthsprofits;
(v) all Contracts containing any Contract involving a non-competition covenant or provision limiting restricting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area of operations or compete with scope or type of business of any Acquired Company or, to the Knowledge of Seller, any officer or management-level employee of an Acquired Company other Person than an Employee Benefit Plan (or requiring exclusive dealings by the Company or any of its Subsidiariesrelated Contract);
(vi) any consulting agreement or any other agreement respecting the terms and conditions of a consulting relationship in respect to any current consultant (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90any Independent Contractor) days without premium or penalty to the Company or of any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000Acquired Company;
(vii) all partnership any employee collective bargaining agreement or joint venture Contractsother similar commitment with any labor union, organization or association covering wages, hours or terms or conditions of employment;
(viii) all Contracts with any sales agent or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearsales representative that is not terminable without penalty on 30 days’ or less notice;
(ix) all Contracts relating to licenses providing for the indemnification or holding harmless of Intellectual Property (whether the Company any officer, director, employee or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Companyother Person;
(x) all Contracts relating to the future disposition granting any Person a Lien (other than a Permitted Lien) on all or acquisition any part of any business enterprise or any interest in any business enterpriseasset;
(xi) all Contracts between contracts and agreements for the cleanup, abatement or among (A) other actions in connection with any Hazardous Materials, the Company remediation of any existing environmental condition or relating to the performance of any of its Subsidiaries, on the one hand, and (B) any Stockholder (environmental audit or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;study; and
(xii) Contracts pertaining to the issuance of debt or equity of the Company any Contract with Seller or any Affiliate of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of $100,000 per yearSeller.
(ib) Each No Acquired Company Contract is legaland, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Company, as the case may be, and to the Knowledge of the Company as Seller, no other party to any Material Contract has commenced any action against any of the date hereofother parties to such Contract or given or received any written notice of any default or violation under such Contract that has not been withdrawn, against dismissed or resolved. Each Acquired Company is in compliance in all material respects with each other party thereto, Material Contract to which it is a party. Each Material Contract is a valid and binding agreement of the applicable Acquired Company and is in full force and effecteffect in accordance with its terms, except as may be limited by bankruptcy or other laws affecting creditors’ rights and (ii) neither the Company nor any of its Subsidiaries nor, by equitable principles. Notwithstanding anything to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated contrary contained in this Agreement.
, this Section 5.14 shall not apply to any Government Contract, Intellectual Property license, Employee Benefit Plan (dand related Contracts) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) real property lease to which any of the Stockholders (or Holders) or the Acquired Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement)party.
Appears in 1 contract
Contracts. (a) Section 4.15(a4(p) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements to which the Company or any of its Subsidiaries Target is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts providing any agreement (or group of related agreements) for the employment, retention, bonus, severance lease of personal property to or other service relationship with from any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate Person regardless of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000amount;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension (or group of credit or the granting of a Lien other than Permitted Liens, or (Brelated agreements) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and year, result in a loss to Target, or involve consideration in excess of $100,00010,000;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation;
(v) any agreement concerning confidentiality or non-competition;
(vi) any agreement with any of Sellers and their Affiliates (other than Target);
(vii) all partnership any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or joint venture Contractsother plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearany collective bargaining agreement;
(ix) all Contracts relating to licenses any agreement for the employment of Intellectual Property (whether the Company any individual on a full-time, part-time, consulting, or any other basis providing annual compensation in excess of its Subsidiaries is the licensor $10,000 or licensee thereunder) material to the business of the Companyproviding severance benefits;
(x) all Contracts relating any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees outside the future disposition or acquisition Ordinary Course of any business enterprise or any interest in any business enterpriseBusiness;
(xi) all Contracts between any agreement under which the consequences of a default or among (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other handtermination could have a Material Adverse Effect;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiariesagreement under which it has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(xiii) Contracts any agreement under which are (A) outside the ordinary course of business for the purchase, acquisition, sale Target has advanced or disposition of loaned any assets or properties or (B) for the grant to other Person any Person of any option or preferential rights to purchase any assets or properties;amounts; or
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 per year.
10,000. Sellers have delivered to Buyer a correct and complete copy of each written agreement (ias amended to date) Each Company Contract listed in Section 4(p) of the Disclosure Schedule and a written summary setting forth the terms and conditions of each oral agreement referred to in Section 4(p) of the Disclosure Schedule. With respect to each such agreement: (A) the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable, and (ii) neither in full force and effect on identical terms following the Company nor any of its Subsidiaries nor, to the Knowledge consummation of the Company as of the date hereof, any other party, transaction contemplated hereby; (C) no party is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration, under the agreement; and (D) or loss of no party has repudiated any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreementagreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Contracts. Except as otherwise disclosed on Schedules 4.12(b), 4.13(a), 4.18(a), and 4.21, Schedule 4.15 lists the following Contracts to which any Acquired Entity is a party:
(a) Section 4.15(a) of the Disclosure Schedule sets forth a complete and accurate list of each Any Contract of the following types or having the following terms to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):
(i) all Contracts providing for the employment, retention, bonus, severance lease of personal property to or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of from any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 30,000 per annum and a term of at least twelve (12) months;annum.
(vb) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts Any Contract for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and year, result in a loss to any Acquired Entity, or involve annual consideration in excess of $100,000;60,000.
(viic) all partnership Any Contract concerning a limited liability company, partnership, joint venture, or joint venture Contracts;similar arrangement.
(viiid) all Contracts Any Contract under which any Acquired Entity has created, incurred, assumed, or purchase orders relating guaranteed any Liability for borrowed money or any capitalized lease in excess of $30,000 per annum, or under which the Contract has imposed or the Acquired Entity has suffered to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per year;
(ix) all Contracts relating to licenses of Intellectual Property (whether the Company or exist an Encumbrance on any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Company;assets.
(xe) all Contracts relating Any Contract restricting any Acquired Entity’s right to compete.
(f) Any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other similar Contract for the future disposition benefit of its current or acquisition former directors, officers, and employees.
(g) Any collective bargaining Contract.
(h) Any Contract for the employment of any business enterprise individual on a full-time, part-time, consulting, or any interest other basis providing annual compensation in any business enterprise;excess of $40,000 or providing severance benefits.
(xii) all Contracts between Any Contract under which an Acquired Entity has advanced or among (A) the Company or loaned any amount to any of its Subsidiariesdirectors or officers or, on outside the one handOrdinary Course of Business, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;to its employees.
(xiij) Contracts pertaining Any Contract pursuant to the issuance of debt which any Acquired Entity has granted to a third party rights under or equity of the Company or with respect to any of its Subsidiaries;Intellectual Property.
(xiiik) Contracts Any Contract pursuant to which are (A) outside the ordinary course of business for the purchase, acquisition, sale any Acquired Entity has obtained from any third party rights under or disposition of any assets or properties or (B) for the grant with respect to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;Intellectual Property.
(xvl) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any Any other Contract (or group of related Contracts) the performance of which involves receipt or payment of annual consideration in excess of $100,000 per year.
75,000. The Company has made available to Buyer a correct and complete copy of each written Contract (ias amended to date) listed on Schedule 4.15 and a written summary setting forth the terms and conditions of each oral Contract referred to on Schedule 4.15. Each Company Contract listed on Schedule 4.15 is the legal, valid, and binding and obligation of the Acquired Entity enforceable against the Company or the party to such Company Contract which is a Subsidiary of the CompanyPerson in accordance with its terms, except as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Contract.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or such enforceability may be subject to the effects of bankruptcy, insolvency, reorganization, moratorium, or bound (other than this Agreement Laws relating to or pursuant affecting the rights of creditors, and general principles of equity, and will continue to this Agreement)be so enforceable following the Closing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Wendys International Inc)
Contracts. (aSCHEDULE 3.1(p) Section 4.15(a) of the Disclosure Schedule sets forth a complete and accurate list of each Contract of lists the following types or having the following terms contracts and other agreements to which the Company or any of its Subsidiaries Prestige is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound as of the date hereof (collectively, the “Company Contracts”):party:
(i) all Contracts Any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for the employment, retention, bonus, severance or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder lease payments in excess of Ten Thousand Dollars ($50,00010,000) per annum;
(ii) all material Contracts Any agreement (other than employment contractsor group of related agreements) with any current or former officer, director, stockholder, employee, consultant, agent or other representative of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling person;
(iii) (A) all instruments relating to indebtedness for borrowed money, any note, bond, deed of trust, mortgage, indenture or agreement to borrow money, and any agreement relating to the extension of credit or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity in excess of $100,000;
(iv) all lease, sublease, rental, license or other Contracts under which the Company or any of its Subsidiaries is a lessor or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental payments in excess of $100,000 per annum and a term of at least twelve (12) months;
(v) all Contracts containing any covenant or provision limiting the freedom or ability of the Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase or sale of raw materials, inventorycommodities, supplies supplies, products, or equipment (including, without limitation, computer hardware and Software)other personal property, or for the provision furnishing or receipt of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and year, result in a material loss to Prestige, or involve consideration in excess of Ten Thousand Dollars ($100,00010,000);
(iii) Any agreement concerning a partnership or joint venture;
(iv) Any agreement (or group of related agreements) under which Prestige has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of Ten Thousand Dollars ($10,000) or under which Prestige has imposed a Security Interest on any of its assets, tangible or intangible;
(v) Any agreement concerning confidentiality or noncompetition;
(vi) Any agreement with the Shareholders or any of their affiliates (other than Prestige);
(vii) all partnership Any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or joint venture Contractsother material plan or arrangement for the benefit of Prestige's current or former directors, officers, and employees;
(viii) all Contracts or purchase orders relating to capital expenditures involving total payments by the Company and its Subsidiaries of more than $100,000 per yearAny collective bargaining agreement;
(ix) all Contracts relating Any agreement over One Thousand ($1,000) Dollars under which Prestige has advanced or loaned any amount to licenses of Intellectual Property (whether the Company or any of its Subsidiaries is directors, officers, and employees other than in the licensor or licensee thereunder) material to the business ordinary course of the Companybusiness;
(x) all Contracts relating to Any agreement under which the consequences of a default or termination could have a material adverse effect on the business, financial condition, operations, results of operations, or future disposition or acquisition prospects of any business enterprise or any interest in any business enterprise;Prestige; and
(xi) all Contracts between Any other agreement (or among (Agroup of related agreements) the Company or any performance of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;
(xii) Contracts pertaining to the issuance of debt or equity of the Company or any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any Person; and
(xvi) any other Contract which involves consideration in excess of Ten Thousand Dollars ($100,000 per year.
10,000). The Shareholders have delivered to 800 Travel and Merger Corp. a correct and complete copy of each written agreement listed in SCHEDULE 3.1(p) and a written summary setting forth the terms and conditions of each oral agreement referred to in SCHEDULE 3.1(p). With respect to each such agreement: (iA) Each Company Contract the agreement is legal, valid, binding and enforceable against the Company or the party to such Company Contract which is a Subsidiary of the Companybinding, as the case may beenforceable, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable, and (ii) neither in full force and effect on identical terms following the Company nor any of its Subsidiaries nor, to the Knowledge consummation of the Company as of the date hereof, any other party, transactions contemplated hereby; and (C) no party is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) would constitute a material breach or default (default, or give rise to any right of permit termination, modification, cancellation or acceleration) or loss of any benefits , under any Company Contractthe agreement.
(c) The Company has delivered to Parent complete and accurate copies of each Company Contract through the date hereof and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating as of the date hereof any modification, waiver or termination of any Company Contract. Except as set forth on Section 4.15(c) of the Disclosure Schedule, no Company Contract is terminable or cancelable as a result of the consummation of the transactions contemplated in this Agreement.
(d) There are no non-competition or non-solicitation agreements or any similar agreements or arrangements that could restrict or hinder the operations or conduct of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (800 Travel Systems Inc)
Contracts. (a) Section 4.15(aSchedule 4.14(a) of the Disclosure Schedule sets forth a true, complete and accurate list of each Contract of the following types or having the following terms to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or their properties or assets is or may be bound correct list, as of the date hereof (collectivelyhereof, of each of the “Company following Assumed Contracts”)::
(i) all Contracts providing for the employment, retention, bonus, severance any Assumed Contract with a Major Customer or other service relationship with any current or former officer, director, employee, consultant or other person requiring compensation by the Company (the name, position or capacity and rate of compensation of each such person and the expiration date of each such Contract being set forth in Section 4.15(a) of the Disclosure Schedule), to the extent there are continuing obligations of the Company or its Subsidiaries thereunder in excess of $50,000a Major Supplier;
(ii) all material Contracts (other than employment contracts) with any current or former officer, director, stockholder, employee, consultant, agent or other representative Assumed Contract not made in the ordinary course of the Company or any of its Subsidiaries or with an entity in which any of the foregoing is a controlling personbusiness;
(iii) (A) all instruments any Assumed Contract or binding commitment for, or setting forth any of the terms or conditions relating to indebtedness for borrowed moneyto, the employment or termination of employment of any noteBusiness Employee or any officer or employee of the Acquired Company, bondor any independent contractor, deed of trustdirector, mortgage, indenture or agreement to borrow money, and any agreement relating consultant providing services to the extension of credit Business, whose basic annual compensation (excluding bonus on commission) or the granting of a Lien other than Permitted Liens, or (B) any Contract of guarantee of credit in favor of any Person or entity fees are in excess of one hundred thousand Dollars ($100,000);
(iv) all leaseany franchise, sublease, rental, license distributorship or other Contracts under which sales agency agreement of the Acquired Company or any of its Subsidiaries is a lessor Selling Affiliate involving current or lessee of any real property or the guarantee of any such lease, sublease, rental or other Contracts providing for lease or rental anticipated payments in excess of either two hundred, fifty thousand Dollars ($100,000 per annum and a 250,000) annually or five hundred thousand Dollars ($500,000) over the term of at least twelve (12) monthsthe agreement;
(v) all Contracts any Assumed Contract for the purchase, or the sale, supply or provision, of materials, supplies, services, merchandise or equipment which (a) provides for exclusive supply or purchase rights or obligations, or (b) is not capable of being fully performed or not terminable without penalty within a period of 60 calendar days and involves annual payments in excess of two hundred, fifty thousand Dollars ($250,000);
(vi) any agreement for the purchase or sale of any of Acquired Company or Selling Affiliate’s assets, other than in the ordinary course of business, or any shares of the Acquired Company or interests in the Acquired Company business or the Transferred JVs;
(vii) any Assumed Contract containing covenants that in any covenant way purport to restrict the business activity of Seller, any Selling Affiliate or provision limiting the Acquired Company or limit the freedom of Seller, any Selling Affiliate or ability of the Acquired Company or any of its Subsidiaries to engage in any line of business, engage in business in any geographical area or to compete with any other Person or requiring exclusive dealings by the Company or any of its Subsidiaries;
(vi) (A) all Contracts for the purchase of materials, inventory, supplies or equipment (including, without limitation, computer hardware and Software), or for the provision of services, involving annual payments of more than $100,000, containing any escalation, renegotiation or redetermination provisions, other than Contracts that are terminable within ninety (90) days without premium or penalty to the Company or any of its Subsidiaries; and (B) notwithstanding (A), all Contracts (i) with material customers of the business of the Company or any of its Subsidiaries, (ii) for the sale by the Company or any of its Subsidiaries of materials, supplies, inventory or equipment (including, without limitation, computer hardware and Software), or (iii) for the provision of services by the Company or any of its Subsidiaries (including, without limitation, consulting services, data processing and management, and project management services), the performance of which will extend over a period of more than one (1) year and involve consideration in excess of $100,000;
(vii) all partnership or joint venture ContractsPerson;
(viii) all Contracts any commitment to make any capital expenditure or to purchase orders relating to a capital expenditures involving total payments by the Company and its Subsidiaries asset in excess of more than two hundred, fifty thousand Dollars ($100,000 per year250,000);
(ix) all Contracts relating to licenses any Assumed Contract for the creation or formation of Intellectual Property (whether the Company a joint venture, partnership or any of its Subsidiaries is the licensor or licensee thereunder) material to the business of the Companylimited liability company;
(x) all Contracts any Assumed Contract relating to the future disposition any indebtedness for borrowed money, guaranty, surety, line of credit or acquisition of any business enterprise other loan or any interest in any business enterprisefinancing arrangement;
(xi) all Contracts between or among (A) the Company any collective bargaining agreement or any Assumed Contract with any labor union or other employee representative of its Subsidiaries, on the one hand, and (B) any Stockholder (or Holder), such Stockholder’s Affiliate (or Holder’s Affiliate), or any Related Party (other than the Company), on the other hand;a group of employees; or
(xii) Contracts pertaining to the issuance any Assumed Contract involving a sharing of debt profits, losses, costs, or equity Liabilities of the Company or Business with any of its Subsidiaries;
(xiii) Contracts which are (A) outside the ordinary course of business for the purchase, acquisition, sale or disposition of any assets or properties or (B) for the grant to any Person of any option or preferential rights to purchase any assets or properties;
(xiv) all engagement letters with clients of the Company or any of its Subsidiaries under which any amount is or may become payable to the Company or any of its Subsidiaries;
(xv) all Contracts under which the Company or any of its Subsidiaries agrees to indemnify any other Person; and
(xvixiii) any other Assumed Contract not otherwise described in clauses (i) through (xii) above to which involves consideration in excess of $100,000 per yearSeller, a Selling Affiliate or the Acquired Company is a party or is otherwise bound, which is material to the Acquired Company or the Business; (collectively, the “Material Business Contracts”).
(ib) Each Company Contract is legal, valid, binding Seller has made available to Purchaser a true and enforceable against the Company or the party to such Company Contract which is a Subsidiary complete copy of the Company, as the case may be, and to the Knowledge of the Company as of the date hereof, against each other party thereto, and is in full force and effect, and (ii) neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company as of the date hereof, any other party, is in material breach or default, and no event has occurred which could constitute (with or without notice or lapse of time or both) a material breach or default (or give rise to any right of termination, modification, cancellation or acceleration) or loss of any benefits under any Company Material Business Contract.
(c) The Company has delivered Except as would not reasonably be expected to Parent complete have a Material Adverse Effect or as set forth on Schedule 4.14(c), each Material Business Contract is in full force and accurate copies of each Company Contract through the date hereof effect and there has been no material modification, waiver or termination of any Company Contract or any material provision thereto through the date hereof. The Company is not contemplating constitutes as of the date hereof any modificationthe valid and legally binding obligation of each party thereto, waiver enforceable in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or termination of any Company Contract. affecting creditors’ rights and to general equity principles (whether in equity or at law).
(d) Except as set forth on Section 4.15(cSchedule 4.14(d), (i) there are no defaults under any Material Business Contract by Seller, any Selling Affiliate or the Acquired Company, other than those, in the case of the Disclosure ScheduleDebtor Contracts, no Company Contract is terminable or cancelable as a result that will be cured upon payment of the consummation Cure Costs and entry of the transactions contemplated in this Agreement.
Approval Order; and (dii) There are to the Knowledge of Seller, there is no non-competition breach of any Material Business Contract by the other party or non-solicitation agreements parties to it, nor has Seller or any similar agreements Selling Affiliate or arrangements that could restrict Acquired Company received notice or hinder the operations other communication regarding any actual, alleged, possible or conduct potential breach of the business of the Company or any of its Subsidiaries or the use of its properties or assets or any “earn-out” agreements or arrangements (or any similar agreements or arrangements) to which any of the Stockholders (or Holders) or the Company or any of its Subsidiaries is a party or may be subject or bound (other than this Agreement or pursuant to this Agreement)Material Business Contract.
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