Material Contracts and Commitments. (a) Schedule 3.11(a) lists with regard to each Seller the following contracts (the “Material Contracts”) (specifying with which Seller): (1) contracts for the provision of goods or Asset Purchase Agreement 25 services related to the Ringtail Business, including, without limitation, their respective software license agreements, support and maintenance agreements, ASP agreements, distribution agreements and similar agreements or arrangements; (2) any continuing contract for management or consulting services, services of independent contractors, the purchase of materials, supplies, equipment or services involving in the case of any such contract more than $100,000 over the life of the contract; (3) any contract limiting the freedom of any Seller to engage in any line of business or to compete with any other person, or any confidentiality, secrecy or non-disclosure contract or any contract that may be terminable as a result of such Seller’s status as a competitor of any party to such contract; (4) any contract pursuant to which any Seller leases any tangible personal property, pursuant to which payments in excess of $50,000 remain outstanding; (5) any contract with an Affiliate; (6) any agreement of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment with respect to, the liabilities of any other person other than customary customer agreements made in the Ordinary Course of Business; (7) any employment contract, arrangement or policy (including any collective bargaining contract or union agreement) that may not be immediately terminated without financial notifications or penalty (or any augmentation or acceleration of benefits); (8) any contract providing for a joint venture or partnership with any other person; (9) any contract the termination or cancellation of which would have a Material Adverse Effect on the Acquired Assets or the Ringtail Business; (10) leases, subleases and licenses with respect to real property; (11) any oral contract or contract that is not in writing, true and correct summaries of which have been provided to the Buyers; and (12) any contract or agreement which is otherwise material and is not described in any of the categories specified in this Section 3.11(a). (b) The Sellers have delivered to the Buyers true, complete and correct copies of each of the Material Contracts. Each Material Contract is valid and binding on the applicable Seller and is in full force and effect and, to each Seller’s Knowledge, is not subject to any default thereunder by any party obligated to such Seller pursuant thereto. Except as set forth on Schedule 3.11(b), each Seller has complied in all material respects with all of its commitments and obligations and is not in default under any of the Material Contracts, and no notice of default has been received with respect to any thereof. Within the past 12 months, no Seller has received any material written customer complaints concerning its services that have not been resolved. Except as set forth on Schedule 3.11(b), each Material Contract was negotiated at arm’s length and is not with any Affiliate of any Seller. No Seller has received written notice of cancellation, modification or termination of any Material Contract. To each Seller’s Knowledge, none of the parties to any Material Contract intends to terminate or alter the provisions thereof by reason of the transactions contemplated by this Agreement or otherwise. (c) Listed on Schedule 3.11(c) are all necessary consents, waivers and approvals of parties to any Material Contracts that are required in connection with any of the transactions contemplated herein, or are required by any Governmental Body or other third party or that are necessary in order that any such Material Contract may be assigned and remain in effect without modification after the Closing and without giving rise to any right to termination, cancellation or acceleration or loss of any right or benefit (“Third Party Consents”). Asset Purchase Agreement 26 (d) Schedule 3.11(d) lists, by dollar volume paid for the 12 month period ended November 30, 2004, the ten largest customers of the Ringtail Business (collectively, the “Major Customers”) and the ten largest suppliers of the Ringtail Business (collectively, the “Major Suppliers”). Except as set forth on Schedule 3.11(d), the relationships of each Seller with its Major Customers and Major Suppliers are reasonable commercial working relationships and: (i) all amounts owing from the Major Customers or to the Major Suppliers, if not in dispute, have been paid or remain collectible in accordance with their respective terms; (ii) none of the Major Customers or the Major Suppliers within the last 12 months has threatened in writing to cancel, or otherwise terminate, the relationship of such person with any Seller; and (iii) none of the Major Customers or the Major Suppliers during the last 12 months has decreased materially or threatened to decrease or limit materially, its relationship with any Seller or, to any Seller’s Knowledge, intends to decrease or limit materially its purchases from, or sales to, any Seller.
Appears in 1 contract
Sources: Asset Purchase Agreement
Material Contracts and Commitments. (a) Section 3.12 of the Disclosure Schedule 3.11(a) lists with regard sets forth a complete list, indicating the parties thereto, of each executory contract and lease to each Seller which the following contracts Company or any Subsidiary is a party (the “Material Contracts”) that constitutes:
(specifying with which Seller): (1i) contracts for the provision a lease of goods or Asset Purchase Agreement 25 services related to the Ringtail Business, including, without limitation, their respective software license agreements, support and maintenance agreements, ASP agreements, distribution agreements and similar agreements or arrangements; (2) any continuing contract for management or consulting services, services of independent contractors, the purchase of materials, supplies, equipment or services personal property involving in the case of any such contract more than $100,000 over the life of the contract; (3) any contract limiting the freedom of any Seller to engage in any line of business or to compete with any other person, or any confidentiality, secrecy or non-disclosure contract or any contract that may be terminable as a result of such Seller’s status as a competitor of any party to such contract; (4) any contract pursuant to which any Seller leases any tangible personal property, pursuant to which payments annual consideration in excess of $25,000;
(ii) a Real Property Lease;
(iii) an agreement involving payment or other obligations of more than $50,000 remain outstanding; in the aggregate that is not cancelable with less than twelve (512) any contract with an Affiliate; months’ notice;
(6iv) any agreement a labor union contract;
(v) a loan agreement, promissory note, letter of guarantee, support, indemnification, assumption or endorsement ofcredit, or any similar commitment with respect to, the liabilities other evidence of any other person indebtedness (other than customary customer agreements made advances to Company Employees in the Ordinary Course of Business; ) whether as a signatory, guarantor or otherwise;
(7vi) an agreement not to compete in any employment contract, arrangement business or policy geographic area;
(including any collective bargaining contract vii) a material agreement with a Company Stockholder or union agreement) that may not be immediately terminated without financial notifications officer or penalty (director of the Company or any augmentation Subsidiary;
(viii) an agreement with any Company Employee or acceleration of benefits); (8) any contract consultant, independent contractor, providing for annual compensation, or other payment, in excess of $100,000;
(ix) a joint venture or partnership with similar agreement;
(x) a power of attorney or proxy;
(xi) a license to use Licensed Intellectual Property (other than “shrink-wrap” software licenses) or a license granting any other person; Person to use Intellectual Property of the Company or any of the Subsidiaries;
(9xii) any contract guaranteeing the termination payment or cancellation performance of which would have a Material Adverse Effect on the Acquired Assets or the Ringtail Business; obligations of any Person;
(10) leases, subleases and licenses with respect to real property; (11xiii) any oral contract or contract that other agreement which was not entered into in the Ordinary Course of Business and which is not in writing, true and correct summaries of which have been provided material to the Buyers; and (12) Company or any contract or agreement which is otherwise material and is not described in any of the categories specified in this Section 3.11(a)Subsidiary.
(b) The Sellers have delivered Company has made available to Parent true, correct and complete copies of the Material Contracts.
(c) All of the Material Contracts are valid, binding and enforceable obligations of the Company or the Subsidiary that is a party thereto and, to the Buyers trueCompany’s Knowledge, complete and correct copies the other parties thereto. Neither the Company, any Subsidiary, nor, to the Company’s Knowledge, any other party is in breach or violation of, or default under, any provision of each any Material Contract except for a breach, violation or default that would not have a Material Adverse Effect. To the Company’s Knowledge, no event which, with notice of passage of time, or both, would constitute a material default, exists under any of the Material Contracts. Each Neither the Company, any Subsidiary, nor to the Company’s Knowledge any other party has repudiated or waived any material provision of any Material Contract is valid and binding on Contract. To the applicable Seller and is in full force and effect and, to each SellerCompany’s Knowledge, is not subject assuming that the consents set forth in Section 3.12 of the Disclosure Schedule have been obtained, no circumstances exist that would give rise to a right of rescission, termination, revision or amendment of any default thereunder Material Contract by any party obligated thereto as a result of any of the transactions contemplated by this Agreement.
(d) Neither the Company nor any Subsidiary has received any written notice that any Person intends to such Seller pursuant thereto. Except as set forth on Schedule 3.11(b), each Seller has complied in all material respects with all of its commitments and obligations and is not in default under cancel any of the Material Contracts, and to the Company’s Knowledge no notice of default has been received such cancellation is threatened.
(e) All discounts, allowances, volume rebates or similar reductions in price, or “most favored customer” status or other price concession granted by the Company or any Subsidiary to any customer (i) with respect to any thereof. Within the past 12 monthssales generated on or before July 31, no Seller has received any material written customer complaints concerning its services that have not been resolved. Except as set forth on Schedule 3.11(b), each Material Contract was negotiated at arm’s length and is not with any Affiliate of any Seller. No Seller has received written notice of cancellation, modification or termination of any Material Contract. To each Seller’s Knowledge, none of the parties to any Material Contract intends to terminate or alter the provisions thereof by reason of the transactions contemplated by this Agreement or otherwise.
(c) Listed on Schedule 3.11(c) are all necessary consents, waivers and approvals of parties to any Material Contracts that are required in connection with any of the transactions contemplated herein, or are required by any Governmental Body or other third party or that are necessary in order that any such Material Contract may be assigned and remain in effect without modification after the Closing and without giving rise to any right to termination, cancellation or acceleration or loss of any right or benefit (“Third Party Consents”). Asset Purchase Agreement 26 (d) Schedule 3.11(d) lists, by dollar volume paid for the 12 month period ended November 30, 2004, the ten largest customers of the Ringtail Business (collectively, the “Major Customers”) and the ten largest suppliers of the Ringtail Business (collectively, the “Major Suppliers”). Except as set forth on Schedule 3.11(d), the relationships of each Seller with its Major Customers and Major Suppliers are reasonable commercial working relationships and: (i) all amounts owing from the Major Customers or to the Major Suppliers, if not in dispute2005, have been paid or remain collectible reflected in accordance with their respective terms; the Financial Statements and (ii) none of with respect to sales generated after July 31, 2005 will be reflected in the Major Customers or Closing Balance Sheet. Neither the Major Suppliers within the last 12 months has threatened in writing to cancel, or otherwise terminate, the relationship of such person with Company nor any Seller; and (iii) none of the Major Customers or the Major Suppliers during the last 12 months has decreased materially or threatened to decrease or limit materially, its relationship with any Seller or, Subsidiary is a party to any Seller’s Knowledge, intends to decrease or limit materially agreement with a term greater than one (1) year guaranteeing the price of any of its purchases from, or sales to, any Sellerproducts.
Appears in 1 contract
Material Contracts and Commitments. (a) Except as set forth on Schedule 3.11(a3.16(a), the Company is not a party to or bound by, nor are any of its assets or properties bound by, any outstanding (in each case, whether written or oral) lists with regard to each Seller the following contracts (the “Material Contracts”):
(i) agreement with respect to the solicitation of customers, suppliers or prospective customers or suppliers;
(ii) contract or agreement with any of the customer of the Company (each, a “Customer Agreement”) and, any waiver, amendment or modification of any Customer Agreement;
(iii) contract for the employment or engagement of any officer, individual employee, or other Person on a full-time, part-time, consulting, independent contractor or other basis or agreement providing severance or other termination payments or change of control or other special compensation arrangement, or benefits or relating to loans to officers, directors, employees or affiliates;
(iv) obligation for Indebtedness; or any agreement or indenture relating to the borrowing of money or to the mortgaging, pledging, guaranteeing or otherwise placing a Lien on any asset or group of assets of the Company;
(v) partnership, joint venture, collaboration, joint marketing, equityholders’ or other similar contract with any Person;
(vi) lease, sublease, license or other similar agreement under which it is lessee or lessor of, or holds or operates or permits any third party to hold or operate, any property, real or personal, except for the Leases and except for any lease of personal property;
(vii) (specifying with which Seller): (1x) contracts for the provision of goods or Asset Purchase Agreement 25 services related agreement relating to the Ringtail Business, including, without limitation, their respective software licensing of (or granting of a covenant not to s▇▇ with respect to) any Intellectual Property by the Company to any Person (including intra-Company license agreements, support ) or by any Person to the Company o (except for licenses of unmodified commercially available mass marketed Software applications with a replacement cost and/or an aggregate annual license and maintenance agreementsfee of less than no greater than $15,000 for any such license or group of related licenses), ASP agreements, distribution agreements and similar agreements (y) agreement relating to the development or arrangements; (2) any continuing contract for management or consulting services, services of independent contractors, the purchase of materials, supplies, equipment or services involving in the case assignment of any such contract more than $100,000 over the life of the contract; Intellectual Property and/or (3) any contract limiting the freedom of any Seller to engage in any line of business or to compete with any other person, or any confidentiality, secrecy or non-disclosure contract or any contract that may be terminable as a result of such Seller’s status as a competitor of any party to such contract; (4) any contract pursuant to which any Seller leases any tangible personal property, pursuant to which payments in excess of $50,000 remain outstanding; (5) any contract with an Affiliate; (6z) any agreement affecting the Company’s ability to use or disclose any Intellectual Property (including any co-existence or settlement agreement);
(viii) contract or group of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment with respect to, the liabilities of any other person other than customary customer agreements made related contracts (excluding purchase orders entered into in the Ordinary Course of Business) for the purchase or sale of products or services under which the undelivered balance of such products and services has a selling price in excess of $50,000; or any other contract involving the payment or potential payment by or to the Company of more than $100,000 during any twelve (712)-month period;
(ix) contract with any employment contractPerson containing any provision or covenant prohibiting or limiting the ability of the Company to engage in any business activity or compete with any Person or prohibiting or limiting the ability of any Person to compete with the Company or prohibiting or limiting disclosure or use of any confidential or proprietary information or other Intellectual Property;
(x) contract that contains a “most favored nation” or similar provision;
(xi) letter of intent, memorandum of understanding or definitive agreement relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) within the last five (5) years;
(xii) power of attorney or other similar agreement or grant of agency;
(xiii) profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance or other similar plan or arrangement for the benefit of its current or policy former directors, managers, unitholders, members, officers or employees;
(including any xiv) collective bargaining agreement or other agreement to or with any labor organization or other employee representative;
(xv) settlement, conciliation or similar agreement with any Governmental Authority;
(xvi) contract for transportation or union agreementfreight services;
(xvii) that may not be immediately terminated without financial notifications or penalty contract to provide rebates to any third parties; or
(xviii) other material agreement (or any augmentation or acceleration group of benefits); (8) any contract providing for a joint venture or partnership with any other person; (9related agreements) any contract not entered into in the termination or cancellation Ordinary Course of which would have a Material Adverse Effect on the Acquired Assets or the Ringtail Business; (10) leases, subleases and licenses with respect to real property; (11) any oral contract or contract that is not in writing, true and correct summaries of which have been provided to the Buyers; and (12) any contract or agreement which is otherwise material and is not described in any of the categories specified in this Section 3.11(a).
(b) The Sellers have delivered Each agreement, lease, contract, commitment or other arrangement set forth or required to the Buyers true, complete and correct copies of each of the Material Contracts. Each Material Contract is valid and binding be set forth on the applicable Seller and Schedule 3.16(a) is in full force and effect andand is a legal, to each Seller’s Knowledgevalid and binding obligation of the Company (except as such enforceability may be limited by bankruptcy, is not subject to any default thereunder insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by any party obligated to such Seller pursuant theretogeneral equitable principles). Except as specifically set forth on Schedule 3.11(b3.16(b), each Seller the Company has complied in performed all material respects with all of its commitments and obligations required to be performed by it and is not not, and to the Company’s Knowledge no other Party is, in default under or in breach of or in receipt of any of the Material Contracts, and no notice claim of default has been received with respect or breach under any agreement, lease, contract, commitment or other arrangement set forth or required to any thereof. Within the past 12 months, no Seller has received any material written customer complaints concerning its services that have not been resolved. Except as be set forth on Schedule 3.11(b3.16(a); and to Company’s Knowledge no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance under any such agreement. The Company has provided Purchaser with a correct and complete copy of, or, if oral, a reasonably complete and accurate written description of, each Material Contract was negotiated at arm’s length and is not with any Affiliate of any Seller. No Seller has received written notice of cancellation, modification contract set forth or termination of any Material Contract. To each Seller’s Knowledge, none of the parties required to any Material Contract intends to terminate or alter the provisions thereof by reason of the transactions contemplated by this Agreement or otherwise.
(c) Listed on Schedule 3.11(c) are all necessary consents, waivers and approvals of parties to any Material Contracts that are required in connection with any of the transactions contemplated herein, or are required by any Governmental Body or other third party or that are necessary in order that any such Material Contract may be assigned and remain in effect without modification after the Closing and without giving rise to any right to termination, cancellation or acceleration or loss of any right or benefit (“Third Party Consents”). Asset Purchase Agreement 26 (d) Schedule 3.11(d) lists, by dollar volume paid for the 12 month period ended November 30, 2004, the ten largest customers of the Ringtail Business (collectively, the “Major Customers”) and the ten largest suppliers of the Ringtail Business (collectively, the “Major Suppliers”). Except as set forth on Schedule 3.11(d3.16(a), the relationships of each Seller together with its Major Customers and Major Suppliers are reasonable commercial working relationships and: (i) all amounts owing from the Major Customers amendments, waivers or to the Major Suppliers, if not in dispute, have been paid or remain collectible in accordance with their respective terms; (ii) none of the Major Customers or the Major Suppliers within the last 12 months has threatened in writing to cancel, or otherwise terminate, the relationship of such person with any Seller; and (iii) none of the Major Customers or the Major Suppliers during the last 12 months has decreased materially or threatened to decrease or limit materially, its relationship with any Seller or, to any Seller’s Knowledge, intends to decrease or limit materially its purchases from, or sales to, any Sellerother changes thereto.
Appears in 1 contract
Material Contracts and Commitments. (a) Schedule 3.11(a4.16(a) lists with regard sets forth a true, correct and complete list of:
(i) each contract, plan, undertaking, arrangement, concession, understanding, agreement, agreement in principle, franchise, permit, instrument, license, lease (other than the Leases), sublease, note, bond, indenture, deed of trust, mortgage, loan agreement or other binding commitment, whether written or oral (“Contract”), to which the Company is a party or by which the Business, the Company, or any of the Assets are bound that may give rise to obligations, Liabilities, revenues or benefits exceeding $25,000;
(ii) each Seller Contract between, on the following contracts one hand, the Company, and, on the other hand, (A) any current or former officer, director, stockholder or employee of the “Material Contracts”Company, (B) (specifying with which Seller): (1) contracts for the provision of goods or Asset Purchase Agreement 25 services related to the Ringtail BusinessKnowledge of the Company, includingany Affiliate of any Person identified in the preceding subsection (a)(ii)(A), without limitation, their respective software license agreements, support and maintenance agreements, ASP agreements, distribution agreements and similar agreements or arrangements; (2C) any continuing contract for management Affiliate of the Company;
(iii) each Contract evidencing outstanding or consulting servicespotential indebtedness of the Company, services of independent contractorsincluding any loan or credit agreement, the purchase of materialssecurity agreement, suppliesguaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation, or services involving in lease purchase agreement to which the case of Company is a party or by which the Company or any such contract more than $100,000 over the life of the contract; Assets are bound;
(3iv) each Contract to which the Company is a party or by which the Company or any contract limiting of the freedom Assets are bound which relates to any intellectual or intangible property (including the Company Intellectual Property);
(v) each Contract relating to the Company, or to which the Company is a party or by which any of the Assets are bound, which contains any Seller to engage in non-solicitation, non-competition, confidentiality or similar obligations or which otherwise prohibit the Company from entering into any line of business or otherwise engaging in any activities, or from freely providing services or supplying products to compete any customer or potential customer, or in any part of the world;
(vi) each Contract for the cleanup, abatement or other actions in connection with any other personHazardous Material, the remediation of any existing environmental Liabilities, violation of any environmental Laws or relating to the performance of any environmental audit or study;
(vii) each joint venture, partnership, strategic relationship or similar Contract relating to the Company, or to which the Company is a party or by which any of the Assets are bound;
(viii) each Contract with any Governmental Authority relating to the Company, or to which the Company is a party or by which any of the Assets are bound;
(ix) each Contract with a pharmaceutical manufacturer or an agency representing a pharmaceutical manufacturer that may give rise to revenues exceeding $25,000;
(x) each Contract for the employment by the Company of any individual, or any confidentialityconsulting, secrecy retention bonus, indemnification or non-disclosure contract or any contract that may severance Contract; and
(xi) each Contract not otherwise required to be terminable as a result of such Seller’s status as a competitor of any party to such contract; (4) any contract listed in the Disclosure Schedule pursuant to which any Seller leases any tangible personal propertythis Section 4.16(a), pursuant to which payments under which, in excess the reasonable judgment of $50,000 remain outstanding; (5) any contract with an Affiliate; (6) any agreement of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment with respect tothe Company, the liabilities consequences of any other person other than customary customer agreements made in the Ordinary Course of Business; (7) any employment contract, arrangement a default or policy (including any collective bargaining contract or union agreement) that may not be immediately terminated without financial notifications or penalty (or any augmentation or acceleration of benefits); (8) any contract providing for a joint venture or partnership with any other person; (9) any contract the termination or cancellation of which would could have a Material Adverse Effect on Effect. The foregoing are referred to as the Acquired Assets or the Ringtail Business; (10) leases, subleases and licenses with respect to real property; (11) any oral contract or contract that is not in writing, true and correct summaries of which have been provided to the Buyers; and (12) any contract or agreement which is otherwise material and is not described in any of the categories specified in this Section 3.11(a)“Material Contracts.”
(b) The Sellers have delivered to the Buyers true, complete and correct copies of each of the Material Contracts. Each Material Contract is valid and binding on the applicable Seller and is in full force and effect and is a legal, valid, binding and enforceable obligation of or against the Company, except as may be limited by the Enforceability Exceptions. Except for breaches or defaults which have been cured and for which the breaching party has no Liability, neither the Company nor, to the Knowledge of the Company, any other party to any Material Contract, has breached or defaulted in any material respect, or has improperly terminated, revoked or accelerated, any Material Contract, and, to each Sellerthe Knowledge of the Company, there exists no condition or event which, after notice or lapse of time or both, would constitute any such breach, default, termination, revocation or acceleration. Except as set forth in Schedule 4.16(b), all Material Contracts were negotiated at arm’s Knowledgelength and since December 31, is 2004, the Company has not subject been a party to any default thereunder by Contract, transaction or other arrangement with any party obligated current or former officers, directors, stockholders, employees or Affiliates of the Company or, to the Knowledge of the Company, any current or former Affiliate of any such Seller pursuant thereto. Persons.
(c) Except as set forth on Schedule 3.11(b4.16(c), each Seller has complied in all material respects with all of its commitments and obligations and is not in default under any of the Material Contracts, and no notice of default has been received with respect to any thereof. Within the past 12 months, no Seller has received any material written customer complaints concerning its services that have not been resolved. Except as set forth on Schedule 3.11(b), each Material Contract was negotiated at arm’s length and is not with any Affiliate of any Seller. No Seller has received written notice of cancellation, modification or termination of any Material Contract. To each Seller’s Knowledge, none of the parties to any Material Contract intends to terminate or alter the provisions thereof by reason of the transactions contemplated by this Agreement or otherwise.
(c) Listed on Schedule 3.11(c) are all necessary consents, waivers and or approvals of parties to from any Material Contracts that Persons are (i) required in connection with any the execution, delivery or performance of this Agreement by the Company or the consummation by the Company of the transactions contemplated herein, or are required by any Governmental Body (ii) necessary or other third party or that are necessary advisable in order that any such Material Contract may be assigned and or Material Permit remain in effect without modification after consummation of the Closing transactions contemplated hereby and without giving not give rise to any right to termination, cancellation cancellation, or acceleration or loss of any right or benefit of the Company (the consents set forth on Schedule 4.16(c) are hereafter referred to as the “Third Party Consents”). Asset Purchase Agreement 26 .
(d) Schedule 3.11(d) listsDuring the period beginning on July 21, by dollar volume paid for 2004 and ending on December 31, 2005 the 12 month period ended November 30, 2004, the ten largest customers of the Ringtail Business (collectively, the “Major Customers”) and the ten largest suppliers of the Ringtail Business (collectively, the “Major Suppliers”). Except as set forth on Schedule 3.11(d), the relationships of each Seller with its Major Customers and Major Suppliers are reasonable commercial working relationships and: (i) all amounts owing from the Major Customers Company did not receive net revenue equal to or exceeding $400,000 pursuant to the Major Suppliersterms and conditions of that certain Strategic Marketing Agreement effective as of July 21, if 2004 by and between the Company and I-FRONTIER, Inc.
(e) The Company is not in dispute, have been paid or remain collectible in accordance with their respective terms; (ii) none of the Major Customers or the Major Suppliers within the last 12 months has threatened in writing to cancel, or otherwise terminate, the relationship of such person with any Seller; and (iii) none of the Major Customers or the Major Suppliers during the last 12 months has decreased materially or threatened to decrease or limit materially, its relationship with any Seller or, party to any Seller’s Knowledge, intends exclusive Contract that would limit its ability to decrease or limit materially its purchases from, or sales to, select and use any Sellerentity to provide accreditation of new continuing medical education offerings.
Appears in 1 contract
Material Contracts and Commitments. Schedule 4.11 identifies all material contracts, agreements, leases and commitments to which Sellers are a party or by which they or any of their assets are bound (a) Schedule 3.11(a) lists with regard to each Seller the following contracts (the “Material Contracts”) (specifying with which Seller): (1) contracts ). Except for the provision Material Contracts identified on Schedule 4.11, Sellers are not a party to or bound by any oral or written:
(a) contract, agreement, or commitment for employment or personal services which by its terms is not terminable without cost or liability to Sellers on notice of goods sixty days or Asset Purchase Agreement 25 services related less or any severance agreement;
(b) supplier, dealer, distributor, sales agency, or brokerage agreement;
(c) contract, agreement, or commitment relating to the Ringtail Business, including, without limitation, their respective software license agreements, support and maintenance agreements, ASP agreements, distribution agreements and similar agreements lease or arrangements; (2) any continuing contract for management sale to or consulting services, services of independent contractors, the purchase of materials, supplies, equipment or services involving in the case by others of any such contract more than $100,000 over the life of the real or personal property;
(d) contract; (3) any contract limiting the freedom of any Seller to engage in any line of business or to compete with any other person, agreement, or any confidentiality, secrecy or non-disclosure contract or any contract that may be terminable as a result of such Seller’s status as a competitor of any party to such contract; (4) any contract pursuant to which any Seller leases any tangible personal property, pursuant to which payments commitment for capital expenditures at an annual amount in excess of $50,000 remain outstanding; 250,000 for any one project or $500,000 in the aggregate;
(5e) contract, agreement, or commitment for the purchase or sale of materials or supplies or the performance of services that involves more than $250,000;
(f) contract not made in the ordinary course of the Business;
(g) rebate arrangement or other similar agreement given to any customer or received from any supplier;
(h) consignment, committed inventory, ledger balance inventory, or similar contract with either a supplier or a customer;
(i) any arrangement restricting Sellers’ or the Business’s ability to conduct any business or use its trade names in any place in the world;
(j) any agreement, contract or other instrument entered into with an Affiliate; a third party under which the Business has borrowed any money from, or issued any note, bond, debenture or other evidence of indebtedness to, any person or any other note, bond, debenture or other evidence of indebtedness issued to any person;
(6k) any agreement, contract or other instrument under which any third party has, directly or indirectly, guaranteed indebtedness, liabilities or obligations of the Business or under which any member of the Business has, directly or indirectly, guaranteed indebtedness, liabilities or obligations of Sellers;
(l) any agreement, contract or other instrument entered into with any third party under which the Business has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment;
(m) any agreement or instrument providing for indemnification of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment Person with respect toto liabilities relating to any current or former product line, segment, portion or division of the liabilities of any other person other than customary customer agreements made in the Ordinary Course of Business; ;
(7n) any employment contract, arrangement or policy (including any collective bargaining contract or union agreement) that may not be immediately terminated without financial notifications or penalty (or any augmentation or acceleration of benefits); (8) any contract providing for agreement relating to a joint venture or partnership partnership;
(o) any prior disposition by Sellers of assets formerly comprising a product line, segment, portion or division of the Business;
(p) any collective bargaining agreements or other agreements or contracts with any other personlabor union; or
(9q) any contract the termination or cancellation of which would have a Material Adverse Effect other material contract. Except as disclosed on the Acquired Assets or the Ringtail Business; (10) leasesSchedule 4.11, subleases and licenses with respect to real property; (11) any oral contract or contract that is not in writing, true and correct summaries of which have been provided to the Buyers; and (12) any contract or agreement which is otherwise material and is not described in any of the categories specified in this Section 3.11(a).
(b) The Sellers have delivered to the Buyers true, complete and correct copies of each of the Material Contracts. Each Material Contract is valid and binding on the applicable Seller and is in full force and effect andand constitutes a legal, valid and binding agreement of the Seller party to each it, enforceable in accordance with its terms, and to such Seller’s Knowledgeknowledge, is not subject to any default thereunder by any of each other party obligated to such Seller pursuant thereto. Except as set forth on Schedule 3.11(b), each Seller has complied Sellers have in all material respects with performed and are performing all obligations required to be performed under the Material Contracts, and neither Sellers nor to the best of its commitments and obligations and Sellers’ knowledge any other party thereto is not in default under any of the Material Contracts, and no . Sellers have not received any notice of default has been received with respect to any thereof. Within the past 12 months, no Seller has received any material written customer complaints concerning its services that have not been resolved. Except as set forth on Schedule 3.11(b), each Material Contract was negotiated at arm’s length and is not with any Affiliate of any Seller. No Seller has received written notice of cancellation, modification or termination of under any Material Contract, nor has any event occurred that with notice or lapse of time or both would constitute a default by Sellers thereunder. To each Seller’s Knowledgethe knowledge of Sellers, none of the parties no Material Contract is subject to any Material Contract intends to terminate impending cancellation or alter the provisions thereof by reason of the transactions contemplated by this Agreement or otherwise.
(c) Listed on Schedule 3.11(c) breach. Sellers are all necessary consents, waivers and approvals of parties to any Material Contracts that are required in connection with any of the transactions contemplated herein, or are required not bound by any Governmental Body or other third party or that are necessary in order that any such Material Contract may be assigned and remain in effect without modification after the Closing and without giving rise to any right to termination, cancellation or acceleration or loss of any right or benefit (“Third Party Consents”). Asset Purchase Agreement 26 (d) Schedule 3.11(d) lists, by dollar volume paid commitments for the 12 month period ended November 30, 2004, the ten largest customers performance of the Ringtail Business (collectively, the “Major Customers”) and the ten largest suppliers services or delivery of the Ringtail Business (collectively, the “Major Suppliers”). Except as set forth on Schedule 3.11(d), the relationships products in excess of each Seller with its Major Customers and Major Suppliers are reasonable commercial working relationships and: (i) all amounts owing from the Major Customers their ability to provide such services or to the Major Suppliers, if not in dispute, have been paid or remain collectible in accordance with their respective terms; (ii) none of the Major Customers or the Major Suppliers within the last 12 months has threatened in writing to cancel, or otherwise terminate, the relationship of deliver such person with any Seller; and (iii) none of the Major Customers or the Major Suppliers products during the last 12 months has decreased materially time available to satisfy such commitments. All outstanding commitments for the performance of services or threatened delivery of products were made on a basis calculated to decrease or limit materially, its relationship with any Seller or, to any Seller’s Knowledge, intends to decrease or limit materially its purchases from, or sales to, any Sellerproduce a profit under the circumstances prevailing when such commitments were made.
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Sources: Asset Purchase Agreement (Applied Industrial Technologies Inc)
Material Contracts and Commitments. (a) Schedule 3.11(a) lists with regard to each Seller the following contracts (the “Material Contracts”) (specifying with which Seller): (1) contracts for the provision of goods or Asset Purchase Agreement 25 services related to the Ringtail Business, including, without limitation, their respective software license agreements, support and maintenance agreements, ASP agreements, distribution agreements and similar agreements or arrangements; (2) any continuing contract for management or consulting services, services of independent contractors, the purchase of materials, supplies, equipment or services involving in the case of any such contract more than $100,000 over the life of the contract; (3) any contract limiting the freedom of any Seller to engage in any line of business or to compete with any other person, or any confidentiality, secrecy or non-disclosure contract or any contract that may be terminable as a result of such Seller’s status as a competitor of any party to such contract; (4) any contract pursuant to which any Seller leases any tangible personal property, pursuant to which payments in excess of $50,000 remain outstanding; (5) any contract with an Affiliate; (6) any agreement of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment with respect to, the liabilities of any other person other than customary customer agreements made in the Ordinary Course of Business; (7) any employment contract, arrangement or policy (including any collective bargaining contract or union agreement) that may not be immediately terminated without financial notifications or penalty (or any augmentation or acceleration of benefits); (8) any contract providing for a joint venture or partnership with any other person; (9) any contract the termination or cancellation of which would have a Material Adverse Effect on the Acquired Assets or the Ringtail Business; (10) leases, subleases and licenses with respect to real property; (11) any oral contract or contract that is not in writing, true and correct summaries of which have been provided to the Buyers; and (12) any contract or agreement which is otherwise material and is not described in any of the categories specified in this Section 3.11(a).
(b) The Sellers have delivered to the Buyers true, complete and correct copies of each of the Material Contracts. Each Material Contract is valid and binding on the applicable Seller and is in full force and effect and, to each Seller’s Knowledge, is not subject to any default thereunder by any party obligated to such Seller pursuant thereto. Except as set forth on Schedule 3.11(b), each Seller has complied in all material respects with all of its commitments and obligations and is not in default under any of the Material Contracts, and no notice of default has been received with respect to any thereof. Within the past 12 months, no Seller has received any material written customer complaints concerning its services that have not been resolved. Except as set forth on Schedule 3.11(b), each Material Contract was negotiated at arm’s length and is not with any Affiliate of any Seller. No Seller has received written notice of cancellation, modification or termination of any Material Contract. To each Seller’s Knowledge, none of the parties to any Material Contract intends to terminate or alter the provisions thereof by reason of the transactions contemplated by this Agreement or otherwise.
(c) Listed on Schedule 3.11(c) are all necessary consents, waivers and approvals of parties to any Material Contracts that are required in connection with any of the transactions contemplated herein, or are required by any Governmental Body or other third party or that are necessary in order that any such Material Contract may be assigned and remain in effect without modification after the Closing and without giving rise to any right to termination, cancellation or acceleration or loss of any right or benefit (“Third Party Consents”). Asset Purchase Agreement 26 26
(d) Schedule 3.11(d) lists, by dollar volume paid for the 12 month period ended November 30, 2004, the ten largest customers of the Ringtail Business (collectively, the “Major Customers”) and the ten largest suppliers of the Ringtail Business (collectively, the “Major Suppliers”). Except as set forth on Schedule 3.11(d), the relationships of each Seller with its Major Customers and Major Suppliers are reasonable commercial working relationships and: (i) all amounts owing from the Major Customers or to the Major Suppliers, if not in dispute, have been paid or remain collectible in accordance with their respective terms; (ii) none of the Major Customers or the Major Suppliers within the last 12 months has threatened in writing to cancel, or otherwise terminate, the relationship of such person with any Seller; and (iii) none of the Major Customers or the Major Suppliers during the last 12 months has decreased materially or threatened to decrease or limit materially, its relationship with any Seller or, to any Seller’s Knowledge, intends to decrease or limit materially its purchases from, or sales to, any Seller.
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Material Contracts and Commitments. Schedule 3.11 to the NIS▇▇ ▇▇sclosure Letter includes an accurate list as of or on the date hereof, of all material written or oral leases, agreements or other contracts or legally binding contractual rights or contractual obligations or contractual commitments relating to or in any way affecting the operation or ownership of the business of NIS▇▇ (a) Schedule 3.11(a) lists with regard to each Seller the following contracts (the “▇he "Material Contracts”"), including but not limited, those of a type described below:
(i) Any consulting agreement, employment agreement, change-in-control agreement, and collective bargaining arrangements with any labor union and any such agreements currently in negotiation or proposed;
(specifying with which Seller): ii) Any contract for capital expenditures or acquisition, or construction of fixed assets in excess of $25,000.
(1iii) contracts Any contract for the provision purchase, maintenance or acquisition, or the sale or furnishing, of goods materials, supplies, merchandise, products, machinery, equipment, parts or Asset Purchase Agreement 25 other property or services related (except if such contract is made in the ordinary course of business and requires aggregate future payments of less than $25,000);
(iv) Any contract other than trade payables in the ordinary course of business relating to the Ringtail Businessborrowing of money, or the guaranty of another person's borrowing of money, including, without limitation, their respective software license agreementsany notes, support mortgages, indentures and maintenance agreementsother obligations, ASP agreementsguarantees of performance, distribution agreements and similar agreements instruments for or arrangements; relating to any lending or borrowing, including assumed indebtedness;
(2v) Any contract granting any continuing person a lien on all or any part of the assets of NIS▇▇;
(vi) Any contract for management the cleanup, abatement or consulting services, services of independent contractorsother actions in connection with hazardous materials as defined under any Environmental Laws, the purchase of materials, supplies, equipment or services involving in the case remediation of any such contract more than $100,000 over existing environmental liabilities or relating to the life of the contract; (3) any contract limiting the freedom performance of any Seller environmental audit or study;
(vii) Any contract granting to engage in any line person an option or a first refusal, first-offer or similar preferential right to purchase or acquire any material assets of business or to compete NIS▇▇;
(viii) Any contract with any other personagent, distributor or any confidentiality, secrecy representative which is not terminable by NIS▇▇ ▇▇on thirty calendar days' or non-disclosure less notice without penalty;
(ix) Any contract under which NIS▇▇ ▇▇ (1) a lessee or any contract that may be terminable as a result of such Seller’s status as a competitor sublessee of any party to such contract; (4) any contract pursuant to which any Seller leases any machinery, equipment, vehicle or other tangible personal property, pursuant to which payments or (2) a lessor of any tangible personal property owned by NIS▇▇, ▇n either case having an original value in excess of $50,000 remain outstanding; 25,000;
(5x) Any contract under which NIS▇▇ ▇▇s granted or received a license or sublicense or under which it is obligated to pay or has the right to receive a royalty, license fee or similar payment;
(xi) Any contract concerning any Affiliates;
(xii) Any contract with an Affiliate; providing for the indemnification or holding harmless of any officer, director, employee or other person, other than as provided in the by-laws of NIS▇▇;
(6xiii) Any contract for purchase or sale by NIS▇▇ ▇▇ the granting of any agreement of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment options with respect to, the liabilities or providing for any labor, services or materials (including brokerage or management services) involving any real property on which NIS▇▇ ▇▇nducts any aspect of any other person other its business involving aggregate future payments of more than customary customer agreements made $25,000;
(xiv) Any contract limiting, restricting or prohibiting NIS▇▇ ▇▇om conducting business anywhere in the Ordinary Course of Business; United States or elsewhere in the world;
(7xv) any employment contract, arrangement or policy (including any collective bargaining contract or union agreement) that may not be immediately terminated without financial notifications or penalty (or any augmentation or acceleration of benefits); (8) any contract providing for a Any joint venture or partnership agreement;
(xvi) Any lease, sublease or associated agreements relating to the property leased by NIS▇▇;
(xvii) Any material contract requiring prior notice, consent or other approval upon a change of control in the equity ownership of NIS▇▇, ▇hich contracts shall be separately identified on Schedule 3.11 to the NIS▇▇ ▇▇sclosure Letter;
(xviii) Any contract with any a customer of NIS▇▇ ▇▇volving work to be performed or product to be delivered, in each case subsequent to September 30, 2000, in excess of $25,000;
(xix) Any other person; (9) any contract contract, whether or not made in the termination or cancellation ordinary course of business, which would have involves future payments by NIS▇▇ ▇▇ excess of $25,000. NIS▇▇ ▇▇s provided AMDI and Merger Corp. a Material Adverse Effect on the Acquired Assets or the Ringtail Business; (10) leases, subleases and licenses with respect to real property; (11) any oral contract or contract that is not in writing, true and correct summaries of which have been provided to the Buyers; and (12) any contract or agreement which is otherwise material and is not described in any of the categories specified in this Section 3.11(a).
(b) The Sellers have delivered to the Buyers true, complete and correct copies copy of each of the Material Contracts. Each written Material Contract is valid and binding on the applicable Seller a true and is complete summary of each oral Material Contract, in full force and effect and, to each Seller’s Knowledge, is not subject to any default thereunder by any party obligated to such Seller pursuant case including all amendments or other modifications thereto. Except as set forth on Schedule 3.11(b)3.11 to the NIS▇▇ ▇▇sclosure Letter, each Seller has complied Material Contract is a valid and binding obligation of, and enforceable in all material respects accordance with all of its commitments and obligations terms against, NIS▇▇, ▇nd the other parties thereto, and is not in default under any of the Material Contractsfull force and effect, subject only to bankruptcy, reorganization, receivership and no notice of default has been received with respect to any thereof. Within the past 12 months, no Seller has received any material written customer complaints concerning its services that have not been resolvedother laws affecting creditors' rights generally. Except as set forth on Schedule 3.11(b)3.11 of the NIS▇▇ ▇▇sclosure Letter, NIS▇▇ ▇▇s performed all obligations required to be performed by it as of the date hereof and will have performed all obligations required to be performed by it as of the Closing Date under each Material Contract was negotiated at arm’s length and is not with neither NIS▇▇, ▇or any Affiliate of any Seller. No Seller has received written notice of cancellation, modification or termination of other party to any Material ContractContract is in breach or default thereunder, and there exists no condition which would, with or without the lapse of time or the giving of notice, or both, constitute a breach or default thereunder. To each Seller’s Knowledge, none of the parties NIS▇▇ ▇▇s not been notified that any party to any Material Contract intends to terminate cancel, terminate, not renew, or alter the provisions thereof by reason of exercise an option under any Material Contract, whether in connection with the transactions contemplated by this Agreement hereby or otherwise.
(c) Listed on Schedule 3.11(c) are all necessary consents, waivers and approvals of parties to any Material Contracts that are required in connection with any of the transactions contemplated herein, or are required by any Governmental Body or other third party or that are necessary in order that any such Material Contract may be assigned and remain in effect without modification after the Closing and without giving rise to any right to termination, cancellation or acceleration or loss of any right or benefit (“Third Party Consents”). Asset Purchase Agreement 26 (d) Schedule 3.11(d) lists, by dollar volume paid for the 12 month period ended November 30, 2004, the ten largest customers of the Ringtail Business (collectively, the “Major Customers”) and the ten largest suppliers of the Ringtail Business (collectively, the “Major Suppliers”). Except as set forth on Schedule 3.11(d), the relationships of each Seller with its Major Customers and Major Suppliers are reasonable commercial working relationships and: (i) all amounts owing from the Major Customers or to the Major Suppliers, if not in dispute, have been paid or remain collectible in accordance with their respective terms; (ii) none of the Major Customers or the Major Suppliers within the last 12 months has threatened in writing to cancel, or otherwise terminate, the relationship of such person with any Seller; and (iii) none of the Major Customers or the Major Suppliers during the last 12 months has decreased materially or threatened to decrease or limit materially, its relationship with any Seller or, to any Seller’s Knowledge, intends to decrease or limit materially its purchases from, or sales to, any Seller.
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