Material Contracts. (a) Section 3.08(a) of the Disclosure Schedules lists each of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”): (i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts; (ii) all agreements that relate to (A) the sale of any of the LiveArea Companies’ assets, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate; (iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise); (iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies; (v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand; (vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party; (vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company; (viii) all existing Benefit Plans; (ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees; (x) all agreements involving or relating to an outstanding loan to, or investment in, any Person; (xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing; (xii) all currently effective Real Property Leases; (xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients; (xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection; (xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract; (xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement; (xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and (xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000. (b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
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Material Contracts. (a) Section 3.08(a) 2.14 of the Disclosure Schedules lists each Schedule sets forth a true and correct list of the following contracts and types of Assigned Contracts, other agreements of than the LiveArea Business (together with all leases listed Lease Agreements, which are separately addressed in Section 3.09(f) of the Disclosure Schedules, collectively, 2.12 (the “Material Contracts”):
(i) each agreement open orders that involve the performance of a LiveArea Company involving aggregate consideration services or delivery of goods or materials by the Business providing for annual revenue to Seller in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts50,000;
(ii) all agreements open purchase orders that relate to (A) involve the sale performance of any services for, or delivery of goods or materials to, the LiveArea Companies’ assets, other than in Business involving annual payments by the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration Business in excess of $500,000 in the aggregate50,000;
(iii) all collective bargaining agreements that relate to the acquisition of or other similar contracts with any business, a material amount of stock or assets of labor union covering any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise)Employees;
(iv) except agreements for agreements relating to trade receivablesthe employment of any Employee on a full-time, all agreements relating to Indebtedness part-time, consulting or other basis (includingA) providing annual cash or other compensation in excess of $50,000, without limitation, guaranteesor (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the LiveArea Companiestransactions contemplated hereby;
(v) all currently effective agreements between or among a LiveArea Company relating to any Lien on any of the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other handPurchased Assets;
(vi) all currently effective collective bargaining agreements that restrict the ability of the Business to engage in any line of business or agreements compete with any labor organization, union or association to which a LiveArea Company is a partyPerson;
(vii) all currently effective employment joint venture or consulting partnership agreements providing for involving a sharing of profits, losses costs or liabilities by the Business with any third Person;
(viii) personal property leases under which the Business is the (A) lessee of tangible personal property owned by any other Person and involving annual salaries or rental payments in excess of $350,000, including target level awards under the Parent’s short term 25,000 and long term incentive plans but excluding commissions and any amounts payable to Employees (B) lessor of tangible personal property owned by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit PlansSeller;
(ix) all currently effective other than agreements requiring severance payments for the sale of ball bearings by the Business on a purchase order basis to the Seller’s Optical Systems Group, and except as otherwise set forth in excess clauses (i) through (viii) above or in Section 2.14 of $100,000 in the aggregate Disclosure Schedule, agreements with, or loans to Employees;or from, any director, officer, Employee, agent or other Affiliate of Seller involving the Business or any Purchased Asset; and
(x) all agreements involving Contracts (except as otherwise set forth in clauses (i) through (ix) above or relating to an outstanding loan to, or investment in, any Person;
(xiin Section 2.14 of the Disclosure Schedule) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, entered into other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not or providing for annual payments by or to the primary purpose Business in excess of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,00050,000.
(b) Except as set forth on Section 3.08(b) Seller has made available to Purchaser a correct and complete copy of each Material Contract. With respect to the Disclosure Schedules: Material Contracts, (i) each Material Contract is valid in full force and effect and is valid, binding on the LiveArea Company party thereto and enforceable against Seller and, to Seller’s Knowledge, the other parties thereto in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party theretoterms, subject to the Bankruptcy ExceptionGeneral Enforceability Exceptions, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company neither Seller nor, to Seller’s Knowledge, any other Person is in default material breach or in breach in any material respect violation of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect ofor default under, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
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Material Contracts. (a) Section 3.08(a) 4.13 of the Parent Disclosure Schedules lists each Schedule sets forth a list of the following all Material Contracts (as hereinafter defined). The Parent has heretofore made available to Fusion true, correct and complete copies of all written or oral contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):
(i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts;
(ii) material amendments, modifications and supplements thereto and all agreements that relate side letters to (A) the sale of any of the LiveArea Companies’ assets, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and which Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company Merger Subsidiary is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under party materially affecting the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xviparty thereunder) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company the Parent or the Merger Subsidiary is a party or by which any of its properties or assets are bound that are material to the business, properties or assets of the Parent and the Merger Subsidiary taken as a whole, including, without limitation, all: (i) employment, severance, personal services or consulting contracts (other than any such contracts that are terminable without penalty upon not more than 90 days notice), and all non-competition or indemnification contracts with current or former directors, officers or employees of the Parent or the Merger Subsidiary (including, without limitation, any contract to which Parent or the Merger Subsidiary is a party involving employees of the Parent); (ii) material license agreements relating to Intellectual Property granting to the Parent a license to practice technology used in the conduct of its current or planned operations; (iii) contracts granting a right of first refusal or first negotiation for essential properties, services or supplies, or material sales not in the ordinary course; (iv) partnership or joint venture agreements; (v) agreements for the acquisition, sale or lease (including leases in connection with financing transactions) of any properties or assets of the Parent with a value in excess of $5,000 (by merger, purchase or sale of assets or business is bound stock or otherwise) entered into since March 31, 1999; (vi) material contracts or agreements with any Governmental Entity; (vii) loan or credit agreements, mortgages, indentures or other agreements or instruments evidencing (A) indebtedness for borrowed money by the Parent or the Merger Subsidiary or any such agreement pursuant to which indebtedness for borrowed money may be incurred (including guaranties) or (B) Liens securing any such indebtedness; (viii) agreements that involve amounts exceeding $500,000.
purport to limit, curtail or restrict the ability of the Parent or the Merger Subsidiary, or would restrict the ability of Parent or the Merger Subsidiary, to compete in any geographic area or line of business; (bix) agreements or arrangements, including but not limited to ▇▇▇▇▇▇, options, swaps, caps and collars, designed to protect the Parent or the Merger Subsidiary against fluctuations in interest rates, currency exchange rates or the prices of certain commodities and raw materials; and (x) commitments and agreements to enter into any of the foregoing (collectively, together with any such contracts entered into in accordance with Section 5.1 hereof, the "Material Contracts"). Except as set forth on in Section 3.08(b) 4.13 of the Parent Disclosure Schedules: Schedule, neither the Parent nor the Merger Subsidiary is a party to or bound by any severance or other agreement with any employee or consultant pursuant to which such person would be entitled to receive any additional compensation or an accelerated payment of compensation as a result of (ix) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue hereby or (y) the termination of such employment or consulting following such consummation.
(b) Each of the Material Contracts is in full force and effect; (ii) . There is no Live Area Company is in breach or default or in breach in under any material respect of, Material Contract either by the Parent or, to Sellers’ Knowledgethe Parent's knowledge, alleged to be in breach in by any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract thereto, and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, that with the passage lapse of time or the giving of notice or both, both would result in constitute a breach or default in any material respect thereunder by any LiveArea Company the Parent or, to Sellers’ Knowledgethe Parent's knowledge, by any other party, except for any such breach or default as does not or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Parent.
(c) No party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any such Material Contract (excluding statements of work) has provided written given notice to the LiveArea Pre-Reorg Parties Parent of or made a claim against the Parent with respect to any LiveArea Company an intention breach or default thereunder, except for any such breach or default as does not or would not reasonably be expected to terminate such Material Contract (x) prior to its stated termination datehave, individually or in the case of aggregate, a Material Contract with a stated term or (y) within one year following Adverse Effect on the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessParent.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a3.09(a) of the Acquired Company Disclosure Schedules lists each Schedule sets forth a complete and accurate list of Contracts that are in effect as of the following contracts date hereof (other than any Employee Benefit Plan or any Contract with respect to real property) (I) to which such Acquired Company is a party, (II) by which such Acquired Company or any of its respective Assets are bound or (III) solely to the extent primarily related to the Business and binding on the Assets of an Acquired Company, to which any Seller or its Affiliates (other agreements of the LiveArea Business than such Acquired Companies) is party (together with all leases listed in each such Contract required to be set forth on Section 3.09(f3.09(a) of the Acquired Company Disclosure SchedulesSchedule, collectively, the a “Material ContractsContract”):
(i) each agreement of a LiveArea any Contract that obligates an Acquired Company involving aggregate consideration to make or receive any payment, capital commitment, loan, or expenditure, in an amount in excess of Fifty Million Dollars ($500,000 during FY 2020 and the current calendar year and all shared customer contracts;
(ii50,000,000) all agreements that relate to (A) the sale of any of the LiveArea Companies’ assets, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(ii) other than the Governing Documents of an Acquired Company, any material Contract with respect to the creation, formation, governance or control of any partnerships, joint ventures or joint ownership arrangements with any Person that is not an Acquired Company;
(iii) all agreements any (A) Contract as obligor, guarantor or grantor of a Lien on its Assets relating to indebtedness for borrowed money (whether incurred, assumed, guaranteed or secured by any Asset), except any such agreement with an aggregate outstanding principal amount not exceeding Fifty Million Dollars ($50,000,000); (B) any intercreditor or similar Contract that relate governs relationships among creditors (including as counterparties to Hedging Arrangements) relating to indebtedness described in the foregoing clause (A); and (C) Contract that restricts such Acquired Company from (I) paying dividends or distributions in respect of the Equity Interests of such Acquired Company, (II) issuing guarantees and other forms of credit support, or (III) granting Liens on Equity Interests or material Assets of such Acquired Company; in each case of clauses (I), (II) and (III), other than (1) the Governing Documents of such Acquired Company and (2) the Lightning Financing Documents, the C-Power Financing Documents and the Thunder Financing Documents;
(iv) any Contract (A) containing covenants expressly limiting the freedom of such Acquired Company to compete with any Person in a product line or line of business or operate in any jurisdiction in any manner that is material to the Business, or (B) requiring any Acquired Company to conduct any business on a “most favored nations” or “exclusive” basis with any third party in a manner that restrains in any material respect the Business;
(v) any Contract for the acquisition or disposition of goods, services and equipment with a total consideration of more than Fifty Million Dollars ($50,000,000) in the aggregate, excluding any Contract with respect to (A) the acquisition or disposition of Assets constituting and operated as a business or of Equity Interests of any Person, whether by the purchase or sale of equity or assets, merger or other extraordinary transaction structure and (B) the sale of electricity power, inventory or obsolete equipment, in each case of this clause (B), in the ordinary course of business;
(vi) any energy management agreement, long-term service Contract with respect to major maintenance or any other Contract providing for the management, maintenance or operation of any Facility by a third party that is material to such Facility;
(vii) any material Contract (other than a Hedging Arrangement) for the purchase, sale, exchange, storage, transmission, disposal, transportation or delivery of natural gas or other fuel supply;
(viii) any electric or natural gas interconnection Contract;
(ix) each Hedging Arrangement with a term exceeding one (1) year after the date of this Agreement with a notional amount in excess of Fifty Million Dollars ($50,000,000) or with a marked-to-market value in excess of Fifty Million Dollars ($50,000,000) in the aggregate, calculated as of any date within five (5) Business Days prior to the date of this Agreement;
(x) any Contract relating to future development or redevelopment of any Acquired Company’s Assets and providing for aggregate future payments from any Acquired Company in excess of Fifty Million Dollars ($50,000,000) in the aggregate;
(xi) any Contract that provide any credit support for or any capital contribution to, or other investment in, any Person, in each case, which involves an obligation or commitment of any Acquired Company in excess of Fifty Million Dollars ($50,000,000) in the aggregate;
(xii) any Contract relating to the settlement of any Action providing for payment by any Acquired Company after the date hereof or pursuant to which any of the Acquired Companies will have any material outstanding obligation after the date hereof, in each case which involves a payment or an obligation or commitment of any Acquired Company in excess of Fifty Million Dollars ($50,000,000);
(xiii) any collective bargaining agreement or other material labor-related Contract, with a union, works council or labor organization;
(xiv) any Contract that (A) relates to the acquisition of any businessAssets or Equity Interests, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets equity, or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing relates to the disposition, directly or indirectly, of Assets of any Acquired Company with a total consideration of more than Fifty Million Dollars ($50,000,000) in the aggregate or any PersonEquity Interests, whether by merger, sale of stock, sale of equity, or otherwise, of any Acquired Company or (C) doing business contains a put, call, rights of first refusal, rights of first offer or similar right pursuant to which any Acquired Company would be required to purchase or sell, as applicable, any of the foregoing, in each case of clause (A) and (B) pursuant to which any geographical area Acquired Company has any continuing material obligations, including material indemnification, guarantee, “earn-out” or (D) soliciting other similar contingent, deferred or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;fixed payment obligations; and
(xv) all currently effective agreements setting forth obligations any Contract (A) pursuant to which CCS or any of its Subsidiaries receives or grants any LiveArea licenses or other rights or access in or to any material Intellectual Property Rights or IT Systems from or to any Person; or (B) affecting CCS’s or any of its Subsidiaries’ ability to disclose, own, enforce, use, or license any material Intellectual Property Rights or IT Systems, in each case, excluding any non-exclusive licenses to generally commercially available software under a click-wrap or shrink-wrap license or subscription service used by such Acquired Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into solely for its own internal use in the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;for less than Five Hundred Thousand Dollars ($500,000) annually.
(xvib) all currently effective agreements involving Each Material Contract is binding and enforceable in accordance with its terms, and in full force and effect with respect to the Acquired Company party thereto and, to the Acquired Company’s Knowledge, with respect to the other parties thereto, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar Laws of general applicability relating to or affecting creditors’ rights or by general equity principles, and neither such Acquired Company nor, to such Acquired Company’s Knowledge, any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development other party is in default or similar arrangement;
(xvii) all agreements from breach under the prior three (3) years involving any resolution or settlement terms of any actual such Material Contract, except for any such defaults or threatened litigation, arbitration, claim or other dispute whichbreaches which would not reasonably be expected to be, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets material to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against Business. To such LiveArea Acquired Company, and to Sellers’ ’s Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, which would result in a breach or default violation of, or a default, give rise to any right of termination, or cause the acceleration of any obligations or result in the creation of any material respect by any LiveArea Company orLiens, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination datePermitted Liens, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach or Lease Agreement (in each case, with or without notice or lapse of an express time or implied warranty regarding a product both) which breach, violation, default or service acceleration would reasonably be expected to be, individually or in the aggregate, material to the Business. No such Acquired Company has received written or, to the Acquired Company’s Knowledge, verbal notice of termination or cancellation of any Material Contract or Lease Agreement other than the expiration of the LiveArea term pursuant to the terms of such Material Contract or Lease Agreement, in each case which termination or cancellation would reasonably be expected to be, individually or in the aggregate, material to the Business, or received a claim regarding any such liability based upon alleged breach . Sellers have made available to Buyer true and complete copies of an express or implied warranty regarding a product or service of the LiveArea Businesseach Material Contract.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a4.15(a) of the Disclosure Schedules Schedule lists each of the following contracts and other agreements of Seller Parent, Seller and the LiveArea Smart Shirts Entities (but in the case of Seller Parent and Seller only to the extent such contracts and agreements relate solely to the Smart Shirts Business (together with all leases listed and, subject to obtaining the consents set forth in Section 3.09(f4.15(b) of the Disclosure SchedulesSchedule, collectively, the would be transferred to Purchaser hereunder) (such contracts and agreements being “Material Contracts”):
(i) all contracts and agreements relating to indebtedness for borrowed money, in each agreement of a LiveArea Company involving aggregate consideration case having an outstanding principal amount in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contractsUS$500,000;
(ii) all material contracts and agreements that relate limit or purport to limit the ability of Seller Parent or Seller (Ato the extent it relates solely to the Smart Shirts Business) the sale of or any of the LiveArea Companies’ assets, other than Smart Shirts Entity to compete in the ordinary course any line of business or (B) capital expenditures with any Person or development costs in any geographic area or expenses, for consideration in excess during any period of $500,000 in the aggregatetime;
(iii) all contracts and agreements that relate to involving (i) total payments in the acquisition aggregate during the calendar year ended December 31, 2007 in excess of any business, a material amount US$1,000,000 or (ii) total payments in the aggregate over the remaining term of stock or assets such contract in excess of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise)US$1,000,000;
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;Business IP Agreements; and
(v) all currently effective material contracts and agreements between or among a LiveArea Company any Smart Shirts Entity, on the one hand hand, and Parent Seller Parent, Seller or any Affiliate of Seller Parent or Seller (other than a LiveArea Company) any Smart Shirts Entity), on the other hand;.
(vib) all currently effective collective bargaining agreements Except as disclosed in Section 4.15(b) of the Disclosure Schedule, each Material Contract (i) is valid and binding on Seller Parent, Seller or agreements with any labor organizationa Smart Shirts Entity, union or association as the case may be, and, to which a LiveArea Company the Knowledge of Seller Parent, the counterparties thereto, and is a party;
in full force and effect and (viiii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result upon consummation of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in except to the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, extent that any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as consents set forth on in Section 3.08(b4.04(c) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated herebySchedule are not obtained, shall continue in full force and effect; (iieffect without penalty or other adverse consequence. Except as disclosed in Section 4.15(b) no Live Area Company of the Disclosure Schedule, none of Seller Parent, Seller or any Smart Shirts Entity is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect ofor default under, any Material Contract; (iii) Contract to Sellers’ Knowledgewhich it is a party, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under except for such Material Contract and is breaches or defaults that would not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of have a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessAdverse Effect.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a3.10(b) of the Disclosure Schedules lists Schedule sets forth each Company Contract of the following contracts and other agreements of the LiveArea Business a type described below (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the each a “Material ContractsContract”):
(i) each agreement for the sale of a LiveArea Company involving aggregate consideration goods or provision of services by the Acquired Companies, other than (A) any such Contract that (i) did not generate gross revenues to the Acquired Companies in excess of $500,000 175,000 during FY 2020 the twelve months immediately preceding the date of this Agreement and (ii) is not reasonably anticipated to generate gross revenues to the current calendar year and all shared customer contractsAcquired Companies in excess of $175,000 during the twelve months immediately following the date of this Agreement, (B) an unwritten Contact entered into in the Ordinary Course of Business or (C) a master services agreement that is disclosed pursuant to Section 3.10(b)(v);
(ii) all agreements that relate to (A) the sale of any of the LiveArea Companies’ assets, other than in the ordinary course of business or (B) for capital expenditures or development costs the purchase of materials, supplies, merchandise, equipment or expenses, for consideration other goods or services by the Acquired Companies requiring annual or aggregate payments by the Acquired Companies in excess of $500,000 in the aggregate175,000, including Company Contracts related to Qualified Capital Expenditures;
(iii) all agreements that relate pursuant to the acquisition of which any business, a material amount of stock or assets of any other Person Acquired Company leases real property or any real property interest therein (whether by merger, sale of stock, sale of assets or otherwisethe “Real Property Leases”);
(iv) except for agreements relating pursuant to trade receivableswhich any Acquired Company leases personal property (whether capital leases, all agreements relating to Indebtedness (including, without limitation, guaranteesoperating leases or conditional sales agreements) requiring annual or aggregate payments by the Acquired Companies in excess of the LiveArea Companies$175,000;
(v) all currently effective agreements between or among that is a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other handmaster services agreement;
(vi) that relates to Intellectual Property, including all currently effective collective bargaining royalty agreements or agreements with any labor organization, union or association to which a LiveArea and licenses (other than licenses for commercially available “off-the-shelf” software where an Acquired Company is a party;licensee); and
(vii) all currently effective for employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving services or relating to an outstanding loan to, the termination or investment in, severance of employment or consulting services (including any Person;
(xi) all currently effective agreements granting Company Contract in which any Acquired Company is the beneficiary of a non-competition or evidencing an Encumbrance on any property similar covenant or asset of any LiveArea Companyagreement), other than a Permitted Encumbrance or Encumbrance that unwritten Company Contracts for at-will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000employment.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
Appears in 1 contract
Sources: Securities Purchase Agreement (Pioneer Drilling Co)
Material Contracts. (a) Section 3.08(aSchedule 4.16(a) of the Company Disclosure Schedules lists each Letter sets forth a true and complete list, as of the following contracts and other agreements date of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedulesthis Agreement, collectively, the “Material Contracts”):of:
(i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts;
(ii) all agreements that relate to other than (A) contracts providing for the sale acquisition, purchase, sale, funding, pledging or divestiture of any of mortgage backed securities and credit risk transfer securities entered into by the LiveArea Companies’ assets, other than Company or its Subsidiaries in the ordinary course of business and that are materially consistent with the contracts or forms of contract made available to Parent prior to the date hereof, and (B) capital expenditures repurchase contracts entered pursuant to the Company’s existing master repurchase agreements (as in effect as of the date hereof) to finance the purchase price of assets or development costs refinance the Company’s repurchase obligations pursuant to such master repurchase agreements, in each case in the ordinary course of the Company’s business, each contract (other than this Agreement) that involves a pending or expensescontemplated merger, for consideration business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt or making of future payments in excess of $500,000 in 250,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the aggregateability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) all agreements that relate each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the acquisition of any business, a material amount of stock or assets of any other Person Company or any real property of its Subsidiaries (whether incurred, assumed, guaranteed or secured by mergerany asset) in excess of $250,000, sale of stock, sale of assets or otherwise)other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) except other than contracts providing for agreements relating to trade receivablesreverse repurchase transactions in the ordinary course of business involving Company Portfolio Securities in an amount of $250,000 or less, all agreements relating to Indebtedness (including, without limitation, guarantees) each contract under which the Company or a Subsidiary of the LiveArea CompaniesCompany has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) all currently effective agreements each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward, swap or other hedging transaction of any type, unless entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among a LiveArea the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand hand, and Parent any officer, director or any Affiliate of Parent (other than a LiveArea wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand;
(vix) all currently effective collective bargaining agreements each contract that obligates the Company or agreements with any labor organizationof its Subsidiaries to indemnify any past or present directors, union officers, or association employees of the Company or any of its Subsidiaries pursuant to which a LiveArea the Company or any of its Subsidiaries is a partythe indemnitor;
(viixi) all currently effective employment each vendor, supplier or third party consulting agreements providing for annual salaries or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $250,000 following the Effective Time; and
(xii) each Contract not otherwise described in any other subsection of this Section 4.16(a) pursuant to which the Company or any Subsidiary of the Company is obligated to pay, or entitled to receive, payments in excess of $350,000250,000 in the twelve (12) month period following the date hereof.
(b) Collectively, the contracts described in Section 4.16(a) and each Contract required to be filed (or incorporated by reference) as an exhibit to any Company SEC Document filed on or after January 1, 2021, pursuant to Item 601(b)(1), (2), (4), (9) or (10) of Regulation S-K promulgated under the Securities Act that has been so filed (or incorporated by reference) are herein referred to as the “Company Contracts.” The Company has made available to Parent true and complete copies of all Company Contracts as of the date hereof, including target level awards under the Parent’s short term amendments and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with supplements thereto that modify each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging such Contract in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company material respect. Except as would not reasonably be expected to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute whichhave, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea a Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Material Adverse Effect, each Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and legal, valid, binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue is in full force and effect; (ii) no Live Area , subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default or in breach in under any material respect of, orCompany Contract nor, to Sellers’ Knowledgethe knowledge of the Company, alleged to be in breach in is any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result Company Contract in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contractthereunder. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true Complete and complete copy accurate copies of each written Material Company Contract in effect as of the date hereof (including any amendments, modifications all amendments and modifications) have been furnished to or renewals relating thereto, but excluding statements of work) has been otherwise made available to BuyersParent. The LiveArea Business Neither the Company nor any of its Subsidiaries has not incurred received written notice of any material liability violation of or material default under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessCompany Contract.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a4.22(a) of the Disclosure Schedules lists each of the following contracts and other agreements Contracts of the LiveArea Business Fidelity Companies (such Contracts, together with all leases Contracts concerning the occupancy, management or operation of any real property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.09(f4.12 of the Disclosure Schedules and all Fidelity IP Agreements set forth in Section 4.21(b) of the Disclosure Schedules, collectively, the being “Material Contracts”):
(i) the 25 largest customer Contracts of the Fidelity Companies for calendar year 2015 based on the amount of revenue expected to be realized by each agreement such customer Contract;
(ii) all employment agreements between a Fidelity Company and any employee of a LiveArea such Fidelity Company;
(iii) any instrument creating any Indebtedness of any Fidelity Company to any third party (including guarantees of an obligation, notes or similar instruments);
(iv) each Contract of any Fidelity Company, other than customer Contracts, involving aggregate consideration in excess of $500,000 during FY 2020 US$20,000.00 and which, in each case, cannot be cancelled by the current calendar year and all shared customer contractsrelevant Fidelity Company without penalty or without more than 90 days’ notice;
(iiv) all agreements Contracts that relate require a Fidelity Company to (A) the sale purchase its total requirements of any of the LiveArea Companies’ assets, other than in the ordinary course of business product or (B) capital expenditures service from a third party or development costs that contain “take or expenses, for consideration in excess of $500,000 in the aggregatepay” provisions;
(iiivi) all agreements Contracts that provide for the indemnification by a Fidelity Company of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(vii) all Contracts that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(ivviii) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which a Fidelity Company is a party;
(ix) all Contracts with independent contractors or consultants (or similar arrangements) to which a Fidelity Company is a party and which are not cancellable without material penalty or without more than 90 days’ notice;
(x) except for agreements Contracts relating to trade receivables, all agreements Contracts relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Fidelity Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on Contracts with any property or asset of any LiveArea Company, other than Governmental Entity to which a Permitted Encumbrance or Encumbrance that will be released at or prior to ClosingFidelity Company is a party (“Government Contracts”);
(xii) all currently effective Real Property LeasesContracts that limit or purport to limit the ability of a Fidelity Company to compete in any line of business or with any Person or in any geographic area or during any period of time or that restrict the ability of a Fidelity Company to solicit customers and/or employees of other Person’s;
(xiii) all currently effective agreements any Contracts to which a Fidelity Company is a party that provide provides for exclusive dealings between the parties thereto any joint venture, partnership or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clientssimilar arrangement by a Fidelity Company;
(xiv) all currently effective customer collective bargaining agreements granting or providing Contracts with any “most favored nation” rights or best price protection;Union to which a Fidelity Company is a party; and
(xv) all currently effective agreements setting forth obligations any Contracts that limit or restrict the ability of any LiveArea a Fidelity Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development pay dividends or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets make distributions to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000stockholders/members.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Each Material Contract is valid and binding on the LiveArea relevant Fidelity Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue is in full force and effect; (ii) no Live Area . No Fidelity Company is in default or in breach in any material respect of, or, to the Knowledge of the Sellers’ Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach in of or default under), or has provided or received any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect notice of any such Material Contract; and (iv) no event has occurred whichintention to terminate, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract (excluding statements or result in a termination thereof or would cause or permit the acceleration or other changes of work) has provided written notice to any right or obligation or the LiveArea Pre-Reorg Parties or loss of any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated termbenefit thereunder. A true Complete and complete copy correct copies of each written Material Contract (including any amendmentsall modifications, modifications or renewals relating thereto, but excluding statements of workamendments and supplements thereto and waivers thereunder) has have been made available provided to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessBuyer.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Fusion Telecommunications International Inc)
Material Contracts. Section 2.15 of the Disclosure Schedule lists, as of the date of this Agreement, the following agreements to which the Company is a party ("MATERIAL CONTRACTS"):
(a) Section 3.08(aany agreement (or group of related agreements) for the lease of the Disclosure Schedules lists each of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):
(i) each agreement of a LiveArea Company involving aggregate consideration personal property from or to third parties providing for payments in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts75,000 per annum;
(iib) all agreements that relate to any agreement (A) or group of related agreements), for the purchase or sale of any commodities, supplies, products or other personal property or for the furnishing or receipt of the LiveArea Companies’ assets, services (other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate with respect to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness utilities and purchase orders (including, without limitation, guaranteesblanket purchase orders) or invoices with respect to commodities, supplies, products or other personal property purchased or sold by the Company in the Ordinary Course of Business), which is not cancelable without penalty in excess of $50,000 by the LiveArea Companies;
Company upon less than one month's prior notice AND (vi) all currently effective agreements between which involved during 1997 (or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organizationis reasonably anticipated to involve during 1998), union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000250,000; (ii) in which the Company agreed to purchase a minimum quantity of goods or services (it being agreed that the foregoing shall not include so called "back-end" or similar programs pursuant to which the Company is entitled to, including target level awards under or grants, a rebate, reduced purchase price or similar discount based on the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable volume of goods or services purchased), (iii) in which the Company has agreed to Employees by Parent purchase goods or PFS as services exclusively from a result of certain party, or (iv) in which the transactions contemplated by this Agreement, and all Company has granted "most favored nation" pricing provisions (it being agreed that the foregoing shall not include agreements with each staffing firm pursuant to which the Company has granted to certain parties (or agency engaged in their members or affiliates) the provision of temporary workers right to a LiveArea buy the Company's products at "end column" or similarly discounted prices);
(viiic) all existing Benefit Plansany agreement establishing a partnership or joint venture;
(ixd) all currently effective any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed (or may create, incur, assume, or guarantee) indebtedness for borrowed money (including capitalized lease obligations) involving more than $100,000 or under which it has imposed (or may impose) an Encumbrance (other than liens for Taxes not yet due) on any of its assets, tangible or intangible;
(e) any agreement concerning non-solicitation or noncompetition;
(f) any agreement involving any of the Company Stockholders or their affiliates ("AFFILIATES"), as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT");
(g) any agreement under which the consequences of a default or termination could reasonably be expected to have a Company Material Adverse Effect; and
(h) any agreement or group of related agreements requiring severance (other than purchase orders (including, without limitation, blanket purchase orders) or invoices with respect to commodities, supplies, products or other personal property purchased or sold by the Company in the Ordinary Course of Business), which is not cancelable by the Company without penalty in excess of $50,000 upon less than one month's prior notice AND (i) which involved during 1997 (or is reasonably anticipated to involve during 1998), annual payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving 250,000; or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area was not entered into in the Ordinary Course of Business. The Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice made available to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of Buyer a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true correct and complete copy of each written Material Contract. With respect to each Material Contract listed and except as set forth in Section 2.15 of the Disclosure Schedule: (including any amendments, modifications or renewals relating thereto, but excluding statements of worki) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any the Material Contract arising from is legal, valid, binding and enforceable and in full force and effect with respect to the Company, and to the knowledge of the Company and the Company Stockholders, with respect to each other party thereto; (ii) the Material Contract will continue to be legal, valid, binding and enforceable and in full force and effect with respect to the Company, and to the knowledge of the Company and the Company Stockholders, with respect to each other party thereto prior to the Closing immediately following the Closing in accordance with the terms thereof as in effect; and (iii) neither the Company nor, to the knowledge of the Company Stockholders, any other party, is in breach or violation of, or default under, any such Material Contract, and no event or action has occurred, is pending or, to the knowledge of the Company and any Company Stockholder, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute a breach of an express or implied warranty regarding a product or service default by the Company or, to the knowledge of the LiveArea BusinessCompany and any Company Stockholder, any other party under such Material Contract. The Company is not a party to any oral contract, agreement or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service other arrangement which, if reduced to written form, would be required to be listed in Section 2.15 of the LiveArea BusinessDisclosure Schedule under the terms of this Section 2.15.
Appears in 1 contract
Sources: Merger Agreement (Staples Inc)
Material Contracts. (a) Section 3.08(a) 3.15 of the Seller Disclosure Schedules lists each sets forth all of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):
(i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts;
(ii) all agreements that relate to (A) the sale of any of the LiveArea Companies’ assets, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association Contracts to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Acquired Company is a party or by which any of its them are bound, and (y) Seller is a party or by which it is bound and pursuant to which Seller has or may have any obligations or liabilities that are or will become Assumed Liabilities, excluding in all cases of clauses (x) and (y) the Acquired Material Leases (collectively, the “Business Material Contracts”):
(i) Contracts with any labor union or association representing any Business Employee;
(ii) Contracts for joint ventures, strategic alliances or partnerships;
(iii) Contracts containing covenants of any of the Acquired Companies or, with respect to the Business, Seller, not to compete in any line of business or with any person in any geographical area or not to solicit or hire any person with respect to employment;
(iv) Contracts relating to the acquisition (by merger, purchase of stock or assets or otherwise) by any of the Acquired Companies of any operating business is bound that involve amounts exceeding or material assets or the capital stock of any other person;
(v) Contracts relating to the incurrence, assumption or guarantee of any indebtedness or imposing a Lien on any of the assets of the Acquired Companies, including indentures, guarantees, loan or credit agreements, sale and leaseback agreements, purchase money obligations incurred in connection with the acquisition of property, mortgages, pledge agreements, security agreements, or conditional sale or title retention agreements;
(vi) purchase Contracts giving rise to liabilities of any of the Acquired Companies in excess of $500,00025,000 individually;
(vii) all Contracts providing for payments by or to any of the Acquired Companies in excess of $25,000 in any fiscal year;
(viii) Contracts under which any of the Acquired Companies has made loans to any other person (other than advances to Business Employees for business expenses in the ordinary course of business); or
(ix) Contracts providing for severance, retention, change in control or other similar payments.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea No Acquired Company, and to Sellers’ Knowledgethe knowledge of Seller, no other party to any Business Material Contract, is in breach of or default under the terms of any Business Material Contract, except for breaches or defaults that would not, individually or in the aggregate, have a material adverse effect on the Business. Each Business Material Contract is a valid and binding obligation of an Acquired Company and, to the knowledge of Seller, of each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue is in full force and effect; , except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) no Live Area Company is in default or in breach in any material respect of, or, equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract equitable defenses and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service discretion of the LiveArea Business, or received a claim regarding court before which any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Businessproceeding therefor may be brought.
Appears in 1 contract
Material Contracts. (a) Except (i) as set forth on Section 3.08(a2.19(a) of the O-I Disclosure Schedules lists each of the following contracts and other agreements of the LiveArea Business Schedule (collectively, "Material Contracts" and, together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectivelyAdditional Material Contracts (as defined below), the “"Company Material Contracts”):
(i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts;
"), (ii) all for this Agreement, any Foreign Subsidiary Purchase Agreement and any agreements that relate necessary to effect the Corporate Restructuring and the Australia Restructuring and (Aiii) for agreements entered into following the sale of any of the LiveArea Companies’ assets, other than date hereof in the ordinary course of business consistent with past practice (such agreements, to the extent they would be required to be set forth on Section 2.19(a) of the O-I Disclosure Schedule if they were in effect on the date hereof, the "Additional Material Contracts"), none of the Company or any of its Subsidiaries is a party to or bound by, nor are any of their properties or assets or the Business affected by any:
(Bi) capital expenditures loan agreement, note, mortgage, security agreement or development costs indenture relating to the borrowing of money or expensesto the mortgaging or pledging of any of its assets, for consideration in each case, pursuant to which the outstanding indebtedness is in excess of $500,000 1,000,000;
(ii) agreement with respect to the lending or investing of funds in the aggregateexcess of $1,000,000;
(iii) all guaranty of any obligation for borrowed money or otherwise in excess of $1,000,000, other than endorsements made for collection in the ordinary course of business consistent with past practice;
(iv) indemnification or other reimbursement obligation in excess of $1,000,000;
(v) license or royalty agreement involving annual payments in 2003 or 2004 by the Company or any of its Subsidiaries to third parties of more than $1,000,000;
(vi) vendor or supply agreement pursuant to which the Company or one of its Subsidiaries makes purchases involving the payment of $1,000,000 or more in any 12 consecutive month period, which agreements have a remaining term of one year or more;
(vii) contract that relate prohibits the Company or any of its Subsidiaries from freely engaging in any business in any geographic region or from competing with any Person;
(viii) agreement (other than this Agreement and the Additional Agreements) relating to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(ivix) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements contract providing for annual salaries or payments base salary and bonus in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and 200,000 with respect to any amounts payable to Employees by Parent or PFS as a result employee of the transactions contemplated by this Agreement, and all agreements with each staffing firm Company or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employeesany Subsidiary;
(x) all agreements involving Collective Bargaining Agreement or similar contract with any labor union, works council or other labor organization relating to an outstanding loan towages, or investment in, any Personhours and other conditions of employment in effect as of the date hereof;
(xi) all currently effective agreements granting any agreement with respect to any hedging, swap, forward, future or evidencing an Encumbrance on derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any property similar transaction or asset any combination of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closingthese transactions;
(xii) all currently effective Real Property Leasespartnership, limited liability company, joint venture agreement or other agreement involving a sharing of profits or expenses;
(xiii) all currently effective agreements any other contract not described above that provide for exclusive dealings between involves the parties thereto payment by, or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of businessliability of, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties Subsidiaries of $1,500,000 or assets to more in any Encumbrances12 consecutive month period or $4,000,000 in the aggregate; and
(xviiixiv) all currently effective agreements any other contract not described above that involves the payment to which any LiveArea the Company is a party or by which any of its assets Subsidiaries of $1,500,000 or business is bound that involve amounts exceeding more in any 12 consecutive month period or $500,0004,000,000 in the aggregate.
(bi) Except as set forth on Section 3.08(b2.19(b)(i) of the O-I Disclosure Schedules: (i) Schedule, each Material Contract and, when executed and delivered, each Additional Material Contract the subject of which is valid and covered by Sections 2.19(a)(i)-2.19(a)(xiii) (the "Other Material Contracts"), is or will be valid, binding on the LiveArea Company party thereto and enforceable in accordance with its terms all material respects against the Company or, if any Subsidiary of the Company is the party to such LiveArea CompanyOther Material Contract, such Subsidiary and to Sellers’ Knowledgethe Knowledge of the O-I Parties, each other party thereto, subject to the Bankruptcy Exceptionin each case, and immediately following the consummation of the transactions contemplated herebyin accordance with their respective terms, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iiiexcept as set forth on Section 2.19(b)(ii) to Sellers’ Knowledgeof the O-I Disclosure Schedule, each other party to each Material Contract of the Company and its Subsidiaries has performed all material obligations in all material respects under the Other Material Contracts required to be performed by it and the Company and each of its Subsidiaries is not in default, has not received any written notice or claim of default under such any Other Material Contract and to the Knowledge of the O-I Parties each other party thereto has performed all material obligations under the Other Material Contracts required to be performed by it and (iii) except as set forth on Section 2.19(b)(iii) of the O-I Disclosure Schedule, none of the Company or any of its Subsidiaries is in material breach of any Other Material Contract and to the Knowledge of the O-I Parties each other party to any Other Material Contract is not in material breach of any Other Material Contract. Except as set forth on Section 2.19(b)(iv) of the O-I Disclosure Schedule, Seller has made available to Buyer true, correct and complete copies of each Material Contract and, prior to the Closing, Seller shall have delivered to Buyer true, correct and complete copies of each Additional Material Contract.
(c) Section 2.19(c)(i) of the O-I Disclosure Schedule sets forth a true, complete and correct list of each agreement or contract that involves the payment to the Company or any of its Subsidiaries of $1,500,000 or more in any 12 consecutive month period or $4,000,000 in the aggregate (each, a "Significant Agreement") that has been duly executed and delivered by the parties thereto (collectively, the "Executed Material Agreements"). Each Executed Material Agreement is valid, binding and enforceable in all material respects against the Company or, if any Subsidiary of the Company is the party to such Executed Material Agreement, such Subsidiary and, to the Knowledge of the O-I Parties, each other party thereto, in each case, in accordance with its respective terms. Except as set forth on Section 2.19(c)(ii) of the O-I Disclosure Schedule, each of the Company and its Subsidiaries has performed all of its material obligations under the Executed Material Agreements required to be performed by it and none of the Company or any of its Subsidiaries is in default or breach, or has received any written notice or claim of default or breach, under any Executed Material Agreement and to the Knowledge of the O-I Parties each other party thereto has performed all of its material obligations under the Executed Material Agreements required to be performed by it and is not in default or in breach in any material respect thereunder. Except as set forth on Section 2.19(c)(iii) of any such Material Contract; and (iv) no event the O-I Disclosure Schedule, Seller has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to BuyersBuyer true, correct and complete copies of each Executed Material Agreement.
(d) Section 2.19(d)(i) of the O-I Disclosure Schedule sets forth a true, complete and correct list of each Significant Agreement that has not been duly executed and delivered by all of the parties thereto (the "Unexecuted Material Agreements"). Section 2.19(d)(i) of the O-I Disclosure Schedule sets forth a summary of all material terms and conditions of business as currently conducted between the Company or a Subsidiary of the Company, as the case may be, and the third party to such Unexecuted Material Agreements (the "Unexecuted Material Agreement Summaries"). The LiveArea Business Unexecuted Material Agreement Summaries are true, complete and accurate in all material respects.
(e) Section 2.19(e)(i) of the O-I Disclosure Schedule sets forth a true, complete and correct list of each Executed Material Agreement that is subject to confidentiality provisions prohibiting disclosure to Buyer (the "Executed Material Confidential Agreements"). O-I has not incurred in its possession true, complete and correct copies of the Executed Material Confidential Agreements and upon notification from the relevant third party to such Executed Material Confidential Agreement that the confidentiality provision has been waived with respect to a review of such agreement by Buyer, will deliver true, complete and correct copies of the Executed Material Confidential Agreements to Buyer. Section 2.19(e)(ii) of the O-I Disclosure Schedule sets forth a summary of terms of the Executed Material Confidential Agreements (the "Executed Material Confidential Summaries"). The Executed Material Confidential Summaries are true, complete and accurate in all material respects. Except as set forth on Section 2.19(e)(iii) of the O-I Disclosure Schedule, each of the Company and its Subsidiaries has performed all of its material obligations under the Executed Material Confidential Agreements required to be performed by it and none of the Company or any material liability of its Subsidiaries is in default or breach, or has received any written notice or claim of default or breach, under any Executed Material Contract arising from a breach of an express or implied warranty regarding a product or service Confidential Agreement and to the Knowledge of the LiveArea Business, O-I Parties each other party thereto has performed all of its material obligations under the Executed Material Confidential Agreements required to be performed by it and is not in default or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service thereunder.
(f) Section 2.19(f)(i) of the LiveArea BusinessO-I Disclosure Schedule sets forth a true, complete and correct list of each Unexecuted Material Agreement that is subject to confidentiality provisions prohibiting disclosure to Buyer (the "Unexecuted Material Confidential Agreements"). O-I has in its possession true, complete and correct copies of the Unexecuted Material Confidential Agreements and upon notification from the relevant third party to such Unexecuted Material Confidential Agreement that the confidentiality provision has been waived with respect to a review of such agreement by Buyer, will deliver true, complete and correct copies of the Unexecuted Material Confidential Agreements to Buyer. Section 2.19(f)(ii) of the O-I Disclosure Schedule sets forth a summary of terms and conditions of business as currently conducted between the Company or a Subsidiary of the Company, as the case may, and the third party to such Unexecuted Material Confidential Agreements (the "Unexecuted Material Confidential Agreement Summaries"). The Unexecuted Material Confidential Summaries are true, complete and accurate in all material respects.
Appears in 1 contract
Sources: Stock Purchase Agreement (Graham Packaging Holdings Co)
Material Contracts. (a) Section 3.08(aSchedule 2.12(a) of the Disclosure Schedules lists each of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):
(i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts;
(ii) all agreements that relate to (A) the sale of any of the LiveArea Companies’ assets, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association Contracts to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company Holdings or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is Subsidiaries are a party or by which any of its them or their assets or business is may be bound that involve amounts exceeding $500,000.
(bthe contracts described in (i) Except to (xi) below and Section 2.12(b) below, “Material Contracts”) in effect as set forth on Section 3.08(b) of the Disclosure Schedules: date of this Agreement:
(i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; Vessel Lease;
(ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; each lease of personal property (other than Vessel Leases) with an annual base rental obligation of more than $500,000;
(iii) each note, mortgage, indenture and other obligation and agreement and other instrument for or relating to Sellers’ Knowledge, each other party any lending or borrowing of Holdings or its Subsidiaries or to each Material Contract has performed all obligations in all material respects required which any assets of Holdings or its Subsidiaries are subject (except with respect to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; lending or borrowing among Holdings and its Subsidiaries);
(iv) no event has occurred whicheach acquisition and/or disposition agreement, with the passage of time or the giving of notice or both, would result in a breach or default in including any material respect by any LiveArea Company or, option to Sellers’ Knowledge, by any party thereto acquire (other than by lease) or sell any LiveArea Companyassets or properties of any Person (other than the purchases or sales of inventory, fuel or supplies in the ordinary course of business) under with a purchase price over $500,000 other than those contracts that have been fully performed;
(v) each joint venture agreement, partnership agreement, or limited liability company operating agreement or other agreements involving a sharing with any Material Contract. No counterparty Person of profits, losses, costs or liabilities of the business activities of any other Person by Holdings or its Subsidiaries with such first Person (but excluding any agency agreement entered into in the ordinary course of business);
(vi) each Contract limiting in any way Holdings’ or its Subsidiaries’ ability to compete with any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties Person in any geographic location or any LiveArea Company an intention line of business;
(vii) each other Contract, other than Collective Bargaining Agreements or Contracts with customers of Holdings or its Subsidiaries for goods or services to terminate such Material Contract be provided by Holdings or its Subsidiaries, which Holdings reasonably anticipates will involve future payment or payments by or to Holdings or its Subsidiaries in excess of $1,000,000 per year;
(viii) each employment agreement set forth on Schedule 2.13(b);
(ix) each Collective Bargaining Agreement set forth on Schedule 2.14;
(x) prior to its stated termination dateeach Intellectual Property license agreement or Computer Software license agreement, in the case involving annual license fees of a Material Contract with a stated term or more than $500,000; and
(yxi) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Businesscontainer interchange agreement.
Appears in 1 contract
Material Contracts. (a) Section 3.08(aSchedule 3.16 contains a list of all material contracts, agreements and commitments (whether written or oral) of the Disclosure Schedules lists each of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedulesto which any Company or any Subsidiary is, collectively, the “Material Contracts”):
(i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts;
(ii) all agreements that relate to (A) the sale of any of the LiveArea Companies’ assets, other than in the ordinary course of business directly or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any businessindirectly, a material amount of stock party (in its own name or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged successor in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan tointerest), or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or by which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company it or any of its properties or assets to any Encumbrances; and
is otherwise bound, in each case that is in effect on the Agreement Date (xviiicollectively, the “Contracts”), including the following: (i) all currently effective franchise, dealer, or other distribution agreements pursuant to which any LiveArea Company is a party of them sells or by otherwise distributes its products or services; (ii) all supply contracts, construction contracts, or other such agreements or understandings pursuant to which any of its assets them purchased in 2007, or expects to purchase in 2008, in excess of $50,000 in products or services; (iii) any agreement involving the licensing of Intellectual Property or the payment of royalties; (iv) any consulting agreement providing for total remaining payments by any of them in excess of $50,000, (v) an agreement that would restrict a Company’s or any Subsidiary’s ability to compete in any business is bound in any location, (vi) agreements concerning a partnership or joint venture; (vii) any guaranty or undertaking to be liable for the debts of others; (viii) any letters of credit; (ix) any agreement relating to ownership of or investments in any Person (including investments in joint ventures and minority equity investments); (x) any agreement relating to business acquisitions or dispositions entered into since January 1, 2007, including any not yet consummated; (xi) any resale or collocation agreements with any communications carriers; (xii) contracts for the sales of any capital asset in excess of $50,000; (xiii) contract for capital expenditures in excess of $100,000, outside the Ordinary Course of Business; (xiv) any written warranties, guaranties or similar undertakings with respect to contractual performance extended by a Company or any Subsidiary other than in the Ordinary Course of Business; (xv) contracts terminable by any other party upon a change of control of a Company or any Subsidiary or upon failure of a Company or any Subsidiary to satisfy financial or performance criteria; (xvi) any employment agreement containing provisions of severance, otherwise limiting any Company or Subsidiary to terminate such agreement or the employment of the individual under such agreement, or providing rights or benefits to the employee in the event of a change of control of any Company or any Subsidiary or (xvii) powers of attorney that involve amounts exceeding $500,000are currently in effect.
(b) True and complete copies of the Contracts (or a true and compete narrative description of any oral Contract) previously have been made available to the Buyer. Except as set forth on Section 3.08(b) Schedule 3.16, none of the Disclosure Schedules: Companies, the Subsidiaries, nor, to the Knowledge of Seller, any other party to any of the Contracts (i) each Material Contract is in default under (nor does there exist any condition that, with notice or lapse of time or both, would cause such a default under) any of the Contracts, or (ii) has waived any right it may have under any of the Contracts. All of the Contracts constitute valid and binding on the LiveArea obligations of a Company party thereto and and/or its Subsidiaries, enforceable in accordance with its terms against such LiveArea Companytheir respective terms, and to Sellers’ Knowledgethe Knowledge of Seller, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated herebyother parties thereto. For purposes of inclusion on Schedule 3.16, a Contract shall continue in full force and effect; (ii) no Live Area Company is in default be deemed material if it requires the payment by, or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect ofto, any Material Contract; Company or its Subsidiary of $50,000 or more during any twelve (iii12) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Businessmonth period.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a) 4.14 of the Disclosure Schedules lists each Schedule sets forth as of the date of this Agreement a true and complete list of the following contracts Contracts to which the Acquired Companies are a party or by which the Acquired Companies or any of their assets and other agreements of the LiveArea Business properties are bound (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):
(i) each agreement of a LiveArea Company involving aggregate consideration any Contract which requires expenditures by the Acquired Companies in any one (1) year in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts25,000 other than payable pursuant to an Employee Plan or employment Contract;
(ii) all agreements any Contract requiring the payment to any Person of a commission or fee in excess of $25,000 other than payable pursuant to an Employee Plan;
(iii) any employment or consulting Contract, employee benefit, bonus, pension, profit-sharing or participation, stock option, stock purchase and similar plans and arrangements other than customary at-will employment arrangements that relate do not provide for any (i) severance or other post-employment payment or benefit or
(ii) payments or benefits related to (A) the a change in control or sale of any Acquired Company or substantially all of the LiveArea Companies’ its assets, retention payments, or similar payments or benefits;
(iv) the Company In-Licenses (other than agreements with employees, consultants and contractors entered into in the ordinary course of business or (Band previously made available to Buyer) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companiesand Company Out-Licenses;
(v) all currently effective agreements between any Contract relating to a joint venture, partnership, collaboration or among other arrangement involving a LiveArea Company on the one hand and Parent sharing of revenues, profits, losses, costs or any Affiliate of Parent (other than a LiveArea Company) on the other handliabilities with another Person;
(vi) all currently effective collective bargaining agreements any Contract under which any of the Acquired Companies are restricted (or agreements with following the Closing will restrict the Buyer) from carrying on any labor organizationbusiness, union or association to which a LiveArea Company is a partycompeting in any line of business market or geographical area, anywhere in the world;
(vii) all currently effective employment any indenture, trust agreement, loan, Contract or consulting agreements providing note that involves, evidences, creates, secures guarantees or otherwise relates to outstanding Indebtedness, obligations or liabilities for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Companyborrowed money;
(viii) all existing Benefit Plansany Contract for the disposition of assets of the Acquired Companies’ in excess of $25,000 (other than for the sale of inventory in the ordinary course of business);
(ix) all currently effective agreements requiring severance payments in excess any indemnification Contract entered into by any of $100,000 in the aggregate Acquired Companies running to Employeesthe benefit of any employee, officer or director of the Acquired Companies;
(x) all agreements involving any Contract for the acquisition of any of the assets, properties, securities or relating other ownership interests of the Acquired Companies or another Person or the grant to an outstanding loan toany Person of any options, rights of first refusal, exclusive negotiation or investment inpreferential or similar rights to purchase any of such assets, properties, securities or other ownership interests;
(xi) any Contract granting to the counter-party any rights of first refusal or first offer or any Contract providing for the grant of exclusive sales, distribution, marketing or other exclusive rights, rights of first negotiation or similar rights and/or terms to any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leasesany Contract that provides for “most favored nations” terms or establishes an exclusive, minimum or priority sale or purchase obligation with respect to any product or service or any geographic location;
(xiii) all currently effective agreements that provide for exclusive dealings between any Contract involving a commitment to make any capital expenditures after the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging date hereof in any line excess of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;$25,000; and
(xiv) any Real Property Lease; provided, that, for purposes of the foregoing subclauses (i), (ii), (viii) and (xiii), if any Contract would not individually meet the dollar thresholds contained in such subclause, as applicable, but which, when taken together with all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations other Contracts of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements such type entered into with the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party counterparty thereto and enforceable in accordance with its terms against such LiveArea Companycounterparty’s Affiliates, and to Sellers’ Knowledgewould meet such threshold, then each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, such Contract shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any deemed a “Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.”
Appears in 1 contract
Sources: Agreement and Plan of Merger (Aldeyra Therapeutics, Inc.)
Material Contracts. (a) Section 3.08(a5.11(a) of the Seller Disclosure Schedules lists Schedule contains a true and correct list of each written contract, agreement, instrument or other legally binding and enforceable commitment (including all amendments and supplements thereto and assignments and extensions thereof, each, a “Material Contract”) in force as of the following contracts date hereof (other than Reinsurance Agreements, insurance or annuity policies and other agreements contracts, or any binders, slips, certificates, endorsements or riders thereto, any contracts, agreements, instruments or commitments that relate solely to the acquisition, disposition or custody of Investment Assets, Employee Benefit Plans, Shared Contracts, and any contracts, agreements, instruments or commitments that relate solely to the Excluded Assets) to which any of the LiveArea Acquired Companies is a party or, where indicated, to which Seller or one of its Affiliates (other than the Acquired Companies) is a party that is used primarily in the Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):that:
(i) each agreement of a LiveArea Company involving involved during the twelve (12)-month period ended December 31, 2019, or is expected to involve during the twelve (12)-month period ending December 31, 2020, (A) aggregate consideration payments in excess of $500,000 during FY 2020 and 2,500,000 by the current calendar year and all shared customer contractsAcquired Companies or any of their Affiliates (in respect of the Business) or (B) the delivery by the Acquired Companies or their Affiliates of goods or services (in respect of the Business) with a fair market value in excess of $2,500,000;
(ii) all agreements that relate involved during the twelve (12)-month period ended December 31, 2019, or is expected to involve during the twelve (A) the sale 12)-month period ending December 31, 2020, receipt of payments, goods or services by any Acquired Company or any of their Affiliates (with respect to the LiveArea Companies’ assets, other than in the ordinary course of business or (BBusiness) capital expenditures or development costs or expenses, for consideration with a fair market value in excess of $500,000 in the aggregate2,500,000;
(iii) all agreements has a non-affiliated Person (A) license (as licensor or licensee) Intellectual Property to or from any of the Acquired Companies (or to or from Seller or an Affiliate other than the Acquired Companies that relate is used primarily in the Business) that involved during the twelve (12)-month period ended December 31, 2019, or is expected to involve during the twelve (12)-month period ending December 31, 2020, aggregate payments in excess of $200,000, or (B) license, create, develop or customize Intellectual Property material to the acquisition operation of the Business for or on behalf of any businessof the Acquired Companies (including under a contract with Seller or an Affiliate other than the Acquired Companies that is used primarily in the Business) or (C) providing data center or hosting services to any of the Acquired Companies (including through a contract with Seller or an Affiliate other than the Acquired Companies) that involved during the twelve (12)-month period ended December 31, a material amount 2019, or is expected to involve during the twelve (12)-month period ending December 31, 2020, aggregate payments in excess of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise)$200,000;
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companiesis a Distribution Contract with any Material Distributor;
(v) all currently effective agreements between relates to any material interest rate, derivative or among a LiveArea Company on hedging transaction or is otherwise material to the one hand and Parent or any Affiliate of Parent Acquired Companies’ hedging program (other than a LiveArea Company) on the other handany ISDA confirmations);
(vi) all currently effective collective bargaining agreements contains covenants limiting the ability of any of the Acquired Companies in any material respect to engage in any line of business or agreements to compete with any labor organizationPerson, union or association that contains covenants limiting the ability of any Person to which a LiveArea provide material products or services to any of the Acquired Companies, in each case, except for contracts and agreements that limit the ability of any Acquired Company is a partyto solicit the employment of, or hire individuals employed by, other Persons;
(vii) all currently effective employment provides for any obligation to loan or consulting agreements providing for annual salaries contribute funds to, or payments make investments in, another Person in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company1,000,000;
(viii) all existing Benefit Plansrelates to Indebtedness in excess of $2,000,000;
(ix) all currently effective agreements requiring severance payments is a limited liability company, partnership, joint venture or other similar contract relating to the formation, creation, operation, management or control of any partnership or joint venture in excess respect of $100,000 in the aggregate to EmployeesBusiness;
(x) all agreements involving or is a written contract with any Managerial Employee relating to an outstanding loan to, such Managerial Employee’s employment with Seller or investment in, any Personits Affiliates;
(xi) all currently effective agreements granting is a material third-party administration or evidencing other insurance policy administration agreement relating to the Insurance Contracts;
(xii) is an Encumbrance on investment management agreement with any property Affiliate of the Acquired Companies or asset any third party in respect of assets held in the general account of any LiveArea Insurance Company;
(xiii) grants a right of first refusal or first offer or similar right, to the extent relating to the Acquired Companies or the Business;
(xiv) places or imposes any Lien, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit Lien, on any LiveArea Company from (A) engaging in any line material asset of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protectionan Acquired Company;
(xv) all currently effective agreements setting forth obligations is a capital maintenance, guaranty or other form of agreement or commitment to maintain levels of capital, risk-based capital, assets or liabilities of any LiveArea Acquired Company to indemnify at any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contractlevel;
(xvi) all currently effective agreements involving is an agreement with any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangementGovernmental Authority;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement is with a provider of any actual or threatened litigation, arbitration, claim or other dispute which, individually or an index that is used in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or connection with any of its properties or assets to any Encumbrances; andthe Insurance Contracts;
(xviii) all currently effective agreements provides for any guarantee or surety by an Acquired Company of the obligations of any other Person (other than another Acquired Company); or
(xix) contains a commitment or obligation to which any LiveArea Company is a party or by which enter into any of its assets or business is bound that involve amounts exceeding $500,000the foregoing.
(b) Except Seller has made available to Buyer a true and correct copy of each Material Contract as set forth on Section 3.08(b) of the Disclosure Schedules: date of this Agreement.
(i) each Each Material Contract is a legal, valid and binding on obligation of the LiveArea Company applicable Acquired Company, Seller or its Affiliates party thereto thereto, and, to the Knowledge of Seller, each other party to such Material Contract, and is enforceable against the applicable Acquired Company, Seller or its Affiliates party thereto, and, to the Knowledge of Seller, each such other party, in accordance with its terms against such LiveArea Company(except in each case as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, rehabilitation, liquidation, fraudulent conveyance or other similar Laws now or hereafter in effect relating to or affecting creditors’ rights generally, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exceptionlimitations imposed by general equitable principles (whether or not such enforceability is considered in a proceeding at Law or in equity)), and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default the applicable Acquired Company, Seller or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other its Affiliates party to each Material Contract thereto has performed all obligations in all material respects the obligations required to be performed by it under such each Material Contract and to which it is not a party, (iii) none of the Acquired Companies, Seller or any of its Affiliates nor, to the Knowledge of Seller, any other party to a Material Contract, is in material violation, material default or in material breach in or has failed to perform any material respect of any such obligation under a Material Contract; , or has received any written claims or, to the Knowledge of Seller, oral claims of such material violation, material breach or material default by it, and (iv) no event has occurred whichto the Knowledge of Seller, with there does not exist any event, condition or omission that would constitute such a material violation, material breach or material default or require the passage payment of additional amounts by any of the Acquired Companies, or, to the Knowledge of Seller, any other party thereto, under any provision thereof or that would permit modification, acceleration or termination of any Material Contract by any of the Acquired Companies or, to Knowledge of Seller, any other party thereto (whether by lapse of time or the giving of notice or both). None of the applicable Acquired Companies, would result in a breach Seller or default in its Affiliates have caused or permitted to exist (whether by action or omission) or have received any material respect by any LiveArea Company written notice or, to Sellers’ Knowledgethe Knowledge of Seller, by oral notice, in respect of a cancellation, termination or non-renewal right that remains in effect, or of an intent or reservation of right to cancel, terminate, close-out or not renew any party thereto Material Contract or any transaction thereunder.
(c) As of the date of this Agreement, to the Knowledge of Seller, no contract (other than any LiveArea Companycontracts with de minimis obligations) under any Material Contract. No counterparty exists (i) that would be assigned to any Material Contract (excluding statements one of work) has provided written notice the Acquired Companies at or prior to the LiveArea Pre-Reorg Parties Closing and pursuant to which AFG or any LiveArea of its Affiliates (other than the Acquired Companies) would be required to perform in lieu of such Acquired Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (yii) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including to which any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, Acquired Companies is a party and pursuant to which AFG or received a claim regarding any such liability based upon alleged breach of an express its Affiliates (other than the Acquired Companies) guarantees any liabilities or implied warranty regarding a product or service obligations of the LiveArea Businessany Acquired Company.
Appears in 1 contract
Sources: Stock Purchase Agreement (American Financial Group Inc)
Material Contracts. Schedule 2.10 of the Final Disclosure Schedule sets forth a complete and accurate list, in each case whether written or unwritten, of all of the following contracts, agreements and arrangements with respect to the Company:
(a) Section 3.08(acontracts with respect to which the Company has any liability or obligation involving more than $15,000.00, contingent or otherwise;
(b) contracts with respect to which the Company expects to receive payments, or incur costs or services, of more than $15,000.00 in any twelve month period;
(c) contracts that may extend for a term of more than one year after the Closing other than any vendor agreement entered into the Ordinary Course of Business that are not otherwise required to be disclosed on Schedule 2.10 of the Final Disclosure Schedule;
(d) all agreements with Customers that are not in substantially the form of customer agreement provided by the Company to the Purchaser and attached as Schedule 2.10(d)(i) of the Final Disclosure Schedules lists each Schedule (the “Standard Customer Agreement”);
(e) all agreements with Suppliers with respect to which the Company has any liability or obligation involving more than $15,000.00 and that is not terminable by the Company on 30 days or less prior written notice without material liability, penalty or premium;
(f) contracts under which the amount payable by the Company is dependent on the revenue, income or other similar measure of the following contracts Company or any other Person;
(g) distribution, marketing, reseller, partner, sales, agency, independent sales agency and other agreements of referral contracts;
(h) contracts, instruments and arrangements relating to any Indebtedness or the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):guarantee thereof;
(i) each agreement contracts and other arrangements of a LiveArea the Company involving aggregate consideration in excess with any officer, director, manager, stockholder, equityholder, or Affiliate of $500,000 during FY 2020 and the current calendar year and all shared customer contractsCompany;
(iij) all agreements that relate to (A) contracts or other arrangements which place any limitation on the sale method of any conducting or scope of the LiveArea Companies’ assets, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (Business including, without limitation, guarantees) any agreement that contains any exclusivity, non-competition, non-solicitation, no-hire, right of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan tofirst refusal, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protectionprovisions;
(xvk) all currently effective agreements setting forth obligations of any LiveArea contracts or other arrangements which require the Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are deliver services on a “fixed fee” or “not the primary purpose of such contractto exceed” basis;
(xvil) all currently effective agreements involving employment, severance, consulting, deferred compensation and similar agreements;
(m) contracts with respect to mergers or acquisitions, sales of securities or material assets, or investments by the Company;
(n) contracts with Governmental Entities, including but not limited to any joint venturefranchise agreement, partnershiplicense agreement, or right of way use agreement;
(o) strategic alliance, shareholders’ agreementco-marketing, joint development or similar arrangementagreements;
(xviip) all agreements from the prior three powers of attorney;
(3q) years involving any resolution or settlement of any actual or threatened litigationagreements, arbitrationcontracts, claim instruments, commitments, plans or other dispute whicharrangements of the Company outside of the Ordinary Course of Business;
(r) agreements, individually licenses, permits, registrations, or in other approvals with any Governmental Entity;
(s) any agreements with any Governmental Entity or non-governmental entity that owns or controls any utility poles, conduits, or rights-of-way governing the aggregateCompany’s attachment or installation of fiber optic lines, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company coaxial cables, or any of its properties other Company owned or assets controlled facilities or equipment to any Encumbrancessuch entity’s poles or conduits (“Pole Attachment Agreements”); and
(xviiit) all currently effective other agreements or contracts which are material to the Business of the Company or which any LiveArea a reasonable purchaser would consider important in deciding whether or not to acquire the Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as to the extent not already listed and disclosed pursuant to the items set forth on Section 3.08(babove. All the foregoing (whether written or unwritten), including all amendments or modifications thereto, all Real Estate Leases, FCC Licenses, and all IP Licenses are sometimes collectively referred to herein as “Material Contracts”. The Company has furnished to the Purchaser true, complete, and correct copies of all Material Contracts (or descriptions thereof, in the case of oral contracts). Each Material Contract (or description) of sets forth the Disclosure Schedules: (i) each entire agreement and understanding between the Company and the other parties thereto. Each Material Contract is valid valid, binding and binding on the LiveArea Company party thereto in full force and effect and enforceable in accordance with its terms against terms. There is no event or condition which has occurred or exists which constitutes or which, with or without notice, the happening of any event and/or the passage of time, could constitute a default or breach under any such LiveArea CompanyMaterial Contract by the Company or, and to Sellers’ Knowledgethe knowledge of the Seller Parties, each any other party thereto, subject or could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. The Seller Parties have no knowledge that the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, parties to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all will not fulfill their obligations thereunder in all material respects required to be performed by it under such respects. There are no pending renegotiations of any Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) the Seller Parties have no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by knowledge that any party thereto (other than any LiveArea Company) under to a Material Contract intends to terminate, accelerate, cancel or materially change the terms of any Material Contract. No counterparty to any Material Contract (excluding statements of work) Each Customer has provided written notice to signed an agreement in substantially the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service form of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessStandard Customer Agreement.
Appears in 1 contract
Sources: Asset Purchase and Contribution Agreement (BOSTON OMAHA Corp)
Material Contracts. (a) Section 3.08(a) With respect to the Company and its Subsidiaries, Schedule 4.22 of the Disclosure Schedules lists Schedule sets forth a complete and correct list, categorized to correspond to the subparagraphs of this Section 4.22(a), of each Contract that is in effect as of the following contracts date of this Agreement and other agreements related to the continued operation of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):Nitrogen Business:
(i) each agreement of that creates a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contractsright to lease, use or occupy real estate;
(ii) all agreements that relate is a lease or agreement under which the Company or any Subsidiary is lessor of or permits any third party to hold or operate any real property, or material personal property (A) the sale of any of the LiveArea Companies’ assets, other than in office equipment), owned or controlled by the ordinary course of business Company or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregateany Subsidiary;
(iii) all agreements that relate to contemplates or involves the acquisition performance of services or sales of products by any businessof the Company or its Subsidiaries having a value in excess of $250,000 in the aggregate during the twelve (12) month period preceding the date of this Agreement, a and which is not terminable by the Company or its Subsidiaries without material amount of stock penalty or assets of any other Person or any real property on not more than ninety (whether by merger, sale of stock, sale of assets or otherwise)90) days’ prior notice;
(iv) except that relates to the purchase or lease of personal property from any supplier or the furnishing of services to the Company or its Subsidiaries and involves payments in excess of $100,000 during the twelve (12) month period preceding the date of this Agreement or commitments for agreements such purchase or lease following such period, other than (A) short-term purchase orders entered into in the Ordinary Course of Business, (B) those Contracts of the type subject to Section 4.22(a)(v) (without regard to amounts) or (C) Contracts for legal, accounting or other professional services approved by the Bankruptcy Court;
(v) other than for sales of product or the purchase of raw materials or inventory in the Ordinary Course of Business, pursuant to which the Company or its Subsidiaries received (or were entitled to receive) or paid (or were obligated to pay) more than $250,000 in the twelve (12) months preceding the date of this Agreement, other than Contracts for legal, accounting or other professional services approved by the Bankruptcy Court;
(vi) relating to, and evidences of, Indebtedness for borrowed money, any mortgage, pledge security agreement, or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any asset in excess of $50,000);
(vii) containing covenants of any of the Company or its Subsidiaries not to trade receivablescompete in any line of business or with any other Person in any geographical area;
(viii) that is an assignment, all agreements relating license, indemnification or agreement with respect to Indebtedness any material intangible property (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plansmaterial Intellectual Property rights);
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employeesis a material distribution or franchise agreement;
(x) all agreements involving other than those subject to Section 4.22(a)(xiii), that is a Contract, agreement or relating to an outstanding loan toother arrangement with any officer, director, stockholder, or investment inAffiliate, or any PersonAffiliate of any officer, director, stockholder, or any individual related by blood, marriage or adoption to any such individual or any entity in which any such Person or individual owns more than one percent (1%) of the equity interest;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than that is a Permitted Encumbrance or Encumbrance that will be released at or prior to Closingcollective bargaining agreement;
(xii) all currently effective Real Property Leasesthat is a settlement, conciliation or similar agreement entered into prior to the date of this Agreement pursuant to which the Company or any of its Subsidiaries will be required following execution of this Agreement to pay consideration in any form in excess of $100,000;
(xiii) all currently effective agreements that provide for exclusive dealings is between the parties thereto Company or which purport to restrict any Subsidiary, on the one hand, and any Transferred Subsidiary or limit any LiveArea Company from (A) engaging in any line of businessNon-Controlled Subsidiary, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;on the other hand; or
(xiv) all currently effective customer agreements granting or providing any that is otherwise material to the Nitrogen Business (the “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000Material Contracts”).
(b) There are no Contracts that would constitute Material Contracts if related to the Nitrogen Business that are not so related and that will be binding on the Company as of Closing.
(c) Other than as set forth on Schedule 4.22 of the Disclosure Schedule, (i) each of the Company and its Subsidiaries have performed all material obligations required to be performed by it through the date of this Agreement under each Material Contract and is not (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder, other than any breach or default that would not enable the counterparty to terminate such Material Contract or assess a material penalty or assessment against the Company following the Closing, and (ii) no party to any of the Material Contracts has commenced any action against the Company or its Subsidiaries or given any written notice of any material default or violation under any Material Contract that was not withdrawn or dismissed. Each of the Material Contracts is, or will be at Closing, valid, binding and in full force and effect against the Company and its Subsidiaries, except as otherwise set forth on Schedule 4.22 of the Disclosure Schedule or except to the extent a Material Contract will expire or is not renewed by the counterparty thereto in accordance with its terms.
(d) As of the date of this Agreement, the Company has no Knowledge of any material breach or anticipated material breach by the other parties to any Material Contract. The Company has no Knowledge of any breach or anticipated breach by the other parties to any Material Contract reasonably likely to result in any Material Adverse Effect.
(e) Except as set forth on Section 3.08(b) Schedule 4.22 of the Disclosure Schedules: (i) each Schedule, neither the Company nor any Subsidiary has assigned any rights or obligations under any Material Contract is valid and binding on to any other Person.
(f) To the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Knowledge of the Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation Schedule 4.22 of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Disclosure Schedule also contains a complete list of all executory Contracts to which the Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto its Subsidiaries (other than any LiveArea Companythe Non-Controlled Subsidiaries) under any are a party.
(g) True and correct copies of each Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract together with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any all amendments, modifications waivers or renewals relating other changes thereto, but excluding statements of work) has have been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessParent.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a) of the Disclosure Schedules lists each of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of Except as set forth on the Disclosure Schedules, collectively, the “Material Contracts”):no Cannavative Entity is party to any Contract:
(ia) each agreement of constituting a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts;
(ii) all agreements that relate to (A) the sale of any of the LiveArea Companies’ assetspartnership, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xviib) all agreements from limiting or restricting the prior three ability of such Cannavative Entity to engage in any market or line of business in any material respect;
(3c) years involving any resolution for the sale or settlement transfer of any actual material assets of such Cannavative Entity, other than sales in the ordinary course of business;
(d) relating to the acquisition by such Cannavative Entity of any operating business or threatened litigationthe material assets or capital stock of any other Person;
(e) relating to the incurrence, arbitrationassumption, claim surety or guarantee of any indebtedness;
(f) under which there is imposed any material Encumbrance on such Cannavative Entity or the assets or properties thereof;
(g) under which such Cannavative Entity leases personal property from or to third parties having aggregate payments in excess of $50,000 per year;
(h) under which such Cannavative Entity is obligated to indemnify any Person other than in the ordinary course of business;
(i) under which such Cannavative Entity has made or is required to make any advances or loans to any Person;
(j) that expires more than one year after the effective date of this Agreement and which has aggregate payments in excess of $50,000 per year;
(k) will require payments of such Cannavative Entity in excess of $100,000 in any twelve- month period;
(l) contains restrictions with respect to the payment of dividends or any other distributions in respect of any of the equity interests of such Cannavative Entity;
(m) that consists of a members', shareholders', buy-sell, put-call or other dispute whichsimilar type of agreement;
(n) with any Seller, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties officers or assets directors or Affiliates of the foregoing Persons, other than salaries and other employment compensation and benefits payable in the ordinary course and disclosed to any EncumbrancesAcquisitionCo and ▇▇▇▇▇▇▇▇, or loans from individual Sellers to Cannavative disclosed to AcquisitionCo and Vencanna; andor
(xviiio) that requires the purchase of all currently effective agreements to which any LiveArea Company is a party or by which any substantially all of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) requirements of a particular product from a supplier. Complete and correct copies of each of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects Contracts required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, described in the case of a Disclosure Schedules pursuant to this Section 3.01(31) ("Material Contract with a stated term or (yContracts") within one year following the Closing Date, in the case of a Material Contract without a stated term. A true have been provided to AcquisitionCo and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessVencanna.
Appears in 1 contract
Sources: Unit Contribution and Sale Agreement
Material Contracts. (a) Except for agreements entered into after the date hereof in accordance with Section 3.08(a) 7.2 or as set forth on Schedule 5.12 (the "Material Contracts"), none of the Disclosure Schedules lists each Conveyed Subsidiaries (or a Subsidiary of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(fa Conveyed Subsidiary) of the Disclosure Schedules, collectively, the “Material Contracts”):nor any Asset Selling Corporation is a party to or bound by:
(i) each any contract, agreement or other arrangement for the purchase of a LiveArea Company involving aggregate consideration Inventories, or other personal property with any supplier or for the furnishing of services to the Business extending beyond one year from the date hereof or the terms of which provide for financial commitments in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts1,000,000;
(ii) all agreements that relate to (A) any contract, agreement and other arrangement for the sale of any Inventories or for the furnishing of services by the LiveArea Companies’ assets, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration Business with firm commitments in excess of $500,000 one year from the date hereof (in the aggregatecase of the United States) and three years from the date hereof (in the case of all other locations);
(iii) all any broker, distributor, dealer, manufacturer's representative, franchise and agency agreements that relate related to the acquisition of any business, a material amount of stock Business that is not cancelable on 60 days' notice or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise)less without financial penalty;
(iv) except for any contracts and agreements relating to trade receivablesindebtedness for borrowed money, all agreements factoring arrangements, sale and leaseback transactions and deferred purchase price of property or other similar financial arrangement relating to Indebtedness the Business with respect to which a Conveyed Subsidiary (including, without limitation, guarantees) or a Subsidiary of the LiveArea CompaniesConveyed Subsidiary) or Asset Selling Corporation is an obligor in excess of $1,000,000;
(v) all currently effective any patent or technology or trademark licenses or agreements between or among research and development or design agreements relating to the Business the terms of which provide for aggregate commitments to be paid by or to a LiveArea Company on Conveyed Subsidiary (or a Subsidiary of the one hand and Parent Conveyed Subsidiary) or any Affiliate Asset Selling Corporation in excess of Parent (other than a LiveArea Company) on the other hand;$100,000; and
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective intercompany agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venturebeing assigned to or assumed by Purchaser, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.all
Appears in 1 contract
Material Contracts. (a) Section 3.08(a3.14(a) of the Seller Disclosure Schedules lists each Schedule sets forth a true and complete list of Contracts in effect as of the following contracts date of this Agreement to which a Conveyed Entity is a party, by which it is bound or to which it is subject (and other agreements any Contracts in effect as of the LiveArea Business date of this Agreement to which a Seller or any of its Affiliates (together other than the Conveyed Entities) is party or by which it is bound and which materially relates to any of the businesses of the Conveyed Entities, each such Contract noted with all leases listed an * in Section 3.09(f3.14(a) of the Disclosure SchedulesSeller 34 Disclosure), which are of the categories listed below (such Contracts, collectively, the “Material Contracts”):
): (i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts;
any broker, distributor, dealer, manufacturer’s representative, franchise, agency, continuing sales or purchase, sales promotion, market research, marketing, consulting or advertising Contract; (ii) all agreements that relate any Contract evidencing Indebtedness of any Conveyed Entity; (iii) any license agreement concerning any Business Intellectual Property, which license agreement or Business Intellectual Property is material to (A) the sale operation of any of the LiveArea Companies’ assetsConveyed Entities, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for non-exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from licenses (A) engaging granted by the Conveyed Entities to customers in any line connection with the sale or provision of business, (B) competing with any Person, (C) doing business products or services by the Conveyed Entities in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice and (B) for commercially generally available software or other Intellectual Property, where the value of the license is less than $500,000; (iv) Contracts under which a Conveyed Entity made or received payments under such indemnification obligations are Contract over any of the last two years in excess of $500,000 per annum; (v) any agreement for capital expenditures or the acquisition or construction of fixed assets involving payments in excess of $500,000 during any the last two years or reasonably expected to involve payments in excess of $500,000 during any year after the date hereof; (vi) any Government Contract that generated revenue for the Conveyed Entities, in excess of $500,000 in any of the last two years which remains subject to audit; (vii) any Contract containing a covenant not to compete that materially impairs the primary purpose ability of such contract;
any Conveyed Entity to freely conduct its respective businesses in any line of business or in any geographic area or that restricts the rights of the Conveyed Entities to solicit for employment or hire any Person, or that grants the other party or any third Person “most favored nation” status or any type of special discount rights; (xviviii) all currently effective agreements involving any Contract creating or relating to any partnership, joint venture, partnership, strategic alliance, shareholders’ agreement, or joint development agreement; (ix) any Contract, other than customer Contracts entered into in the ordinary course of business, containing a covenant or covenants of any Conveyed Entity to indemnify or hold harmless another third Person; (x) any Contract relating to the disposition or acquisition by any Conveyed Entity, with obligations remaining to be performed or liabilities continuing after the date of this Agreement, of any business or any amount of material assets other 35 than in the ordinary course of business, including any “earn-out” or other contingent payments or obligations; (xi) any collective bargaining agreement or similar arrangement;
Contract with any labor union, works council or any other employee organization; (xviixii) all agreements from any Contract relating to the prior three settlement of any Action within the past five (35) years involving any resolution a payment of more than $300,000 or settlement the imposition of any actual non-monetary restrictions or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.sanctions;
Appears in 1 contract
Sources: Stock Purchase Agreement
Material Contracts. (a) Section 3.08(a) Schedule 2.10 hereto sets forth, as of the Disclosure Schedules lists each this Agreement, a list of all of the following contracts and agreements for the Company and its Subsidiaries (except for those which will be terminated at or prior to the Closing (the “Terminated Contracts”), which such Terminated Contracts are identified on Schedule 2.10 as such):
(a) contracts or leases with respect to which the Company or any Subsidiary has a stated obligation of more than $250,000 within the twelve (12) month period from and after the date of this Agreement, other agreements than purchase orders entered into in the ordinary course of business;
(b) contracts under which Company or any Subsidiary has borrowed or loaned any money or has issued any note, bond, indenture or other evidence of indebtedness or directly or indirectly guaranteed indebtedness, liabilities or obligations of others (it being understood and agreed by the Buyer that any activities undertaken in the processing and settlement of payments in servicing customers in the ordinary course operation of the LiveArea Business consistent with past practice, that could arguably be required to be disclosed in response to this representation do not need to be disclosed, and the failure to disclose such information shall not be deemed to be a breach of this representation);
(together c) contracts which place any material limitation on the operation of the Business, such as agreements with all non-solicitation, non-compete, exclusivity or “most favored nation” provisions;
(d) employment, bonus, severance, retention and deferred compensation agreements;
(e) contracts with any labor union or association relating to current employees of the Company or any Subsidiary, or collective bargaining agreements;
(f) contracts with any Affiliate of the Company;
(g) distribution and reseller agreements;
(h) research and development agreements;
(i) contracts with Governmental Authorities;
(j) leases of equipment or real property or licenses of Intellectual Property to the Company or any Subsidiary from another Person pursuant to which Company or any Subsidiary paid such Person more than $50,000 in the twelve (12) month period preceding the Balance Sheet Date;
(k) franchise, partnership and joint venture agreements;
(l) contracts with the customers and vendors listed in Section 3.09(fSchedule 2.15;
(m) contracts with respect to mergers, amalgamations or acquisitions by the Company or any Subsidiary; and
(n) contracts that are not otherwise listed elsewhere on Schedule 2.10 under which the consequences of a default or termination would reasonably be expected to have a Company Material Adverse Effect. All of the Disclosure Schedules, collectively, foregoing contracts and the Leases are sometimes collectively referred to herein as the “Material Contracts”):
(i) . The Company has made available to the Buyer true and correct copies of all Material Contracts. Each Material Contract is a legal, valid and binding obligation of the Company or its Subsidiary, as the case may be, and each agreement Material Contract is enforceable against the Company or its Subsidiary, as the case may be, in accordance with the terms thereof, in all cases subject to applicable bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium and similar laws now or hereafter in effect relating to creditors rights generally and general principles of equity. To the Company’s knowledge, each Material Contract is legal, valid, binding and enforceable against the other parties thereto in accordance with the terms thereof, subject to applicable bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium and similar laws now or hereafter in effect relating to creditors rights generally and general principles of equity. Neither the Company nor any Subsidiary is in default under any Material Contract, and to the Company’s knowledge, no event has occurred which with notice or lapse of time would constitute a LiveArea breach or default by the Company involving aggregate consideration in excess of $500,000 during FY 2020 and or any Subsidiary or permit any third party to terminate, modify or accelerate such Material Contract. Neither the current calendar year and all shared customer contracts;
(ii) all agreements that relate to (A) the sale of Company nor any Subsidiary has expressly waived any of its material rights under any Material Contract. To the LiveArea Companies’ assetsknowledge of the Company, no other than party to any Material Contract has materially breached or is in the ordinary course of business or (B) capital expenditures or development costs or expensesmaterial default thereunder, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate and to the acquisition Company’s knowledge, no event has occurred which with notice or lapse of any business, time would constitute a material amount of stock breach or assets of any other Person default by such party or permit the Company or any real property (whether by mergerSubsidiary to terminate, sale of stockmodify or accelerate such Material Contract. Except as set forth on Schedule 2.5, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, Agreement will not afford any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each a Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention right to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessContract.
Appears in 1 contract
Sources: Securities Purchase Agreement (Henry Jack & Associates Inc)
Material Contracts. (a) Except (x) as set forth on Section 3.08(a3.6(a) of the Seller Disclosure Schedules lists each Schedule and (y) for this Agreement and the Ancillary Agreements, as of the date of this Agreement, neither Seller nor any Seller Subsidiary is a party to any of the following contracts and other agreements types of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):Transferred Contract:
(i) each agreement any Contract under which Seller or Seller Subsidiary is lessor of a LiveArea Company involving or permits any third party to hold or operate any tangible property (other than real property), owned or controlled by Seller or any Seller Subsidiary, providing for aggregate consideration annual rental payments in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts100,000;
(ii) all agreements that relate to (A) any Contract providing for the sale use by any third party of any of the LiveArea Companies’ assetsmicrowave, satellite or terrestrial communications circuits, backbone connections or other than transmission or transport facilities or service, or any third-party tower or similar facilities (each, a “Facilities Communications Agreement”), in the ordinary course of business or (B) capital expenditures or development costs or expenseseach case, providing for consideration annual aggregate payments in excess of $500,000 100,000;
(iii) any Contract providing for the use by any third party of any public utility facilities including any pole line, joint pole or master contracts for pole attachment rights and the use of conduits (each, a “Pole Attachment Agreement”), in each case material to the Business;
(iv) any Contract providing for the operation by any third party of the Systems, including any fiber agreement/indefeasible-right-of-use (“IRU”), interconnection agreement, leased capacity/leased access agreement, I-Net or PEG agreement (excluding any Pole Attachment Agreements and Facilities Communications Agreement), in each case material to the Business;
(v) any Contract under which Seller or a Seller Subsidiary is lessee of or holds or operates any tangible or real property, owned by any other Person, except for any Contract under which the aggregate annual rent payment do not exceed $100,000 (excluding any Pole Attachment Agreements, Facilities Communications Agreement and Contracts disclosed pursuant to Section 3.6(a)(iv));
(vi) any Contract providing for the sale of local add-avail time to third parties for advertising or other purposes involving annual payments in excess of $100,000;
(vii) any installment sale Contract or liability for the deferred purchase price of property with respect to any of the Acquired Assets involving payments exceeding $100,000 in the aggregate;
(iiiviii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except subscriber Contract for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers cable services, High Speed Internet Service, or Voice Services provided by the Systems to a LiveArea Company;
(viii) all existing Benefit Plansmultiple dwelling units, bulk subscribers or commercial establishments involving annual payments exceeding $100,000 to Seller and the Seller Subsidiaries;
(ix) all currently effective agreements requiring severance payments (A) any Contract material to the Business pursuant to which Seller or any Seller Subsidiary receives a license or is otherwise permitted by a third party to use or register any material Intellectual Property Rights (other than any “shrink wrap,” “commercially available software package” or “click through” license or off-the-shelf Software licenses commercially available on standard terms with an annual license fee of less than fifty thousand dollars ($50,000)), or (B) any Contract material to the Business pursuant to which Seller or any Seller Subsidiary grants a license to a third party licenses under any Acquired Intellectual Property (other than licenses granted in the ordinary course, in connection with the sale or licensing of any products or services);
(x) any Contract with any Governmental Authority, other than the franchises set forth in Section 1.1(a) of the Seller Disclosure Schedule;
(xi) any Contract that provides for the formation, creation, operation, management or control of any joint venture, partnership or other similar arrangement with a third party;
(xii) any Contract involving annual aggregated consideration payable by or to Seller or any Seller Subsidiary in excess of $100,000 in for employment or the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan toperformance of services for any Business Employee, independent contractor, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior consultant with respect to Closing;
(xii) all currently effective Real Property Leases;the Acquired Assets; and
(xiii) all currently effective agreements that provide for exclusive dealings between any Contract involving annual aggregate consideration payable by Seller or any Seller Subsidiary in excess of $300,000. Each Transferred Contract of the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or type described in the aggregateforegoing clauses (i) - (xiii) of this Section 3.6 (other than, involve amounts exceeding $250,000 or which otherwise provide for the avoidance of doubt, this Agreement, the Ancillary Agreements, any equitable remedy or subject any LiveArea Company or any purchase orders and statements of its properties or assets work and invoices) is referred to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is herein as a party or by which any of its assets or business is bound that involve amounts exceeding $500,000“Material Contract.”
(b) Except as set forth on Section 3.08(b) As of the Disclosure Schedules: date hereof, except as would not reasonably be expected to be material to the Business, (i) each Material Contract is a legal, valid and binding on obligation of a Seller or any Seller Subsidiary, and, to the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ KnowledgeKnowledge of Seller, each other party thereto, subject to the Bankruptcy Exception, counterparty and immediately following the consummation of the transactions contemplated hereby, shall continue is in full force and effect; , (ii) no Live Area Company neither Seller or any Seller Subsidiary nor, to the Knowledge of Seller, any other party thereto, is in default breach of, or in breach in any material respect ofdefault under, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; , and (iviii) no event has occurred which, that with the passage notice or lapse of time or the giving of notice or both, both would result in constitute such a breach or default in thereunder by a Seller or any material respect by any LiveArea Company Seller Subsidiary, or, to Sellers’ Knowledgethe Knowledge of Seller, by any other party thereto (other than thereto. Except as set forth in Section 3.6(b) of the Seller Disclosure Schedule, none of the Transferred Contracts include any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements non-competition agreements or covenants restricting the conduct of work) the Business as it has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) been conducted prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessClosing.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a) The Disclosure Letter sets forth a list as of ------------------ the Disclosure Schedules lists each date hereof of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):
(i) each agreement Contracts for borrowed money or guarantees thereof, - other than Contracts entered into in the ordinary course of a LiveArea business consistent with the past practice of the Company involving less than $25,000 individually or $250,000 in the aggregate consideration in excess or Contracts between the Company and any of $500,000 during FY 2020 and its wholly owned Subsidiaries or between any of the current calendar year and all shared customer contracts;
Company's wholly owned Subsidiaries, (ii) all agreements that relate Contracts involving any rate swap transaction, basis swap, -- forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction (including any option with respect to any of these transactions), or any combination of these transactions (Aeach a "Derivative" and collectively, "Derivatives"), other than Derivatives ---------- ----------- entered into in the ordinary course of business consistent with the past practice of the Company and with the Company's policies regarding Derivatives as previously disclosed to Purchaser, (iii) Contracts containing covenants by the sale --- Company or any Subsidiary restricting its ability or the ability of any of the LiveArea Companies’ affiliates of the Company or any of its Subsidiaries to engage in any line of business, (iv) Contracts to purchase materials, supplies or other assets, other -- than purchase orders entered into in the ordinary course of business consistent with the past practice of the Company and other Contracts involving obligations of less than $25,000 individually and $250,000 in the aggregate, (v) Contracts - to purchase or acquire advertising or other product promotion or brand support other than spot orders purchased in the ordinary course of business or (B) capital expenditures or development costs or expensesinvolving commitments by the Company of less than $25,000, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements Contracts with -- distributors, brokers or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing sales agents for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result distribution of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in products of the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than Contracts involving or likely to involve payments of less than $200,000 per year, (vii) Contracts entered into by the Company since --- January 1, 1993 and in which the Company's surviving liability (including indemnities) could reasonably be expected to exceed $100,000 and involving the sale or other disposition by the Company of one or more business units, divisions or entities (including former Subsidiaries), (viii) Contracts involving the investment, including by way of ---- capital contribution, loan or advance, by the Company or any of its Subsidiaries of more than $25,000 in any other person, firm or entity (other than wholly- owned Subsidiaries), other than investments no longer owned by the Company or its Subsidiaries, (ix) promotion Contracts in the United States with the -- Company's ten largest customers having a Permitted Encumbrance term of longer than three (3) months, and (x) other Contracts under which the obligation of the Company and its - Subsidiaries is $100,000 or Encumbrance that will be released at more or prior are otherwise material to Closing;
the business of the Company and its Subsidiaries, taken as a whole (xiiall Contracts described in each of the categories (i) all currently effective Real Property Leases;
through (xiiix) all currently effective agreements that provide for exclusive dealings between above, "Material Contracts"). All ------------------ Contracts to which the Company or any of its Subsidiaries is a party or by which any of their respective assets are bound are valid and binding, in full force and effect and enforceable against the parties thereto in accordance with their respective terms, except where the failure to be so valid and binding, in full force and effect or enforceable would not individually or in the aggregate have a Material Adverse Effect. There is not under any such Contract, any existing default, or event, which purport after notice or lapse of time, or both, would constitute a default, by the Company or any of its Subsidiaries, or to restrict or limit the knowledge of the Company, any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third other party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where any such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development defaults or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute events which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is would not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of have a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessAdverse Effect.
Appears in 1 contract
Material Contracts. Except as set forth on Schedule 3.11 hereto, neither any Company nor any Subsidiary is a party to or bound by any written or oral (a) Section 3.08(a) employment, consulting or non-competition agreement or contract requiring payments of the Disclosure Schedules lists each of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):
(i) each agreement of a LiveArea Company involving aggregate consideration compensation to any one Person in excess of $500,000 during FY 2020 and 75,000 per year or aggregate payments of compensation to any one Person in excess of $150,000; (b) joint venture or partnership contract or agreement; (c) contract or agreement restricting the current calendar year and all shared customer contracts;
(ii) all agreements that relate to (A) the sale right of any of the LiveArea Companies’ assetsCompanies or the Subsidiaries to compete in any way with any other Person; (d) other than trade payables in the ordinary course of business, agreement or contract creating, evidencing or securing, as of the date hereof, obligations of any of the Companies or the Subsidiaries for (i) borrowed money, (ii) purchase money indebtedness, (iii) any guarantee or assumption of an obligation for borrowed money or purchase money indebtedness or other obligations of reimbursement of any maker of a letter of credit or any guaranty of minimum equity or capital or any make-whole or similar agreement, (iv) any loan or extension of credit by any Company or Subsidiary or (v) bankers acceptance; (e) agreement or contract relating to any outstanding commitment for capital expenditures in excess of the amount set forth on the capital budget provided to Parent prior to the date hereof; (f) licenses, whether as licensor or licensee, of any Intellectual Property; (g) any material lease as lessee or lessor of real or personal property; (h) capitalized lease or sale-leaseback or material conditional sale agreement; (i) distributorship or franchise agreement; (j) material raw material or other supply agreements or any exclusive dealing, requirements or take-or-pay contracts; (k) other than as identified in Section 3.12, any brokerage or finders fee agreements; or (l) other contract or agreement, entered into other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries involving an estimated total future payment or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent 100,000. Each contract or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as agreement set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract Schedule 3.11 hereto is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, orand, to Sellers’ KnowledgeSeller's knowledge, alleged is legal, valid and binding and enforceable against each other Person party thereto. Neither any of the Companies or Subsidiaries, nor, to be in breach in any material respect ofSeller's knowledge, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; contract or agreement, is in material breach thereof or default thereunder and (iv) no there does not exist under any provision thereof, any event has occurred whichthat, with the passage of time or the giving of notice or the lapse of time or both, would result in constitute such a breach or default in any material respect by any LiveArea Company or Subsidiary or, to Sellers’ KnowledgeSeller's knowledge, by any other party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice such contract or agreement, except for such breaches, defaults and events as to which requisite waivers or consents have been or prior to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated termwill have been obtained. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) Seller has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach TH USA and THEH true and correct copies of an express each of such written agreements and contracts or implied warranty regarding a product or service provided written summaries of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Businessoral agreements and contracts.
Appears in 1 contract
Material Contracts. (a) Section 3.08(aSchedule 4.5(a) sets forth a correct and compete list of all the Refinery Contracts described below to which Sunoco or any of the Disclosure Schedules lists each Contributing Subsidiaries is a party as of the following contracts date hereof, including all amendments and other agreements modifications thereto, and which primarily relate to the Refinery Business or any of the LiveArea Business Refinery Assets (together with all leases listed in Section 3.09(ffor the avoidance of doubt, other than the Excluded Contracts) of the Disclosure Schedules, (collectively, the “Material Contracts”):
(i) each agreement any Contract relating to indebtedness (or any guaranty thereof) or the granting of a LiveArea Company involving aggregate consideration in excess of any lien with respect to more than $500,000 during FY 2020 and the current calendar year and all shared customer contracts100,000 (excluding any Credit Support Obligations);
(ii) all agreements that relate to (A) the sale of any of the LiveArea Companies’ assets, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregateCBA;
(iii) all agreements that relate to any Contract providing for the acquisition future disposition of any business, Refinery Asset (i) with a material amount fair market value of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other more than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company500,000, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging dispositions in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past custom and practice where such indemnification obligations are not (including for the primary purpose avoidance of such contractdoubt with respect to quantity, price and frequency) or (ii) with a fair market value of more than $5,000,000;
(xviiv) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development lease of real or similar arrangementpersonal property that provides for an annual base rental payable by Sunoco or any of the Contributing Subsidiaries of more than $500,000;
(xviiv) all agreements any Contract expressly prohibiting a Person from engaging in any business relating to the prior three Refinery;
(3vi) years involving any resolution or settlement of any actual or threatened litigationpartnership, arbitration, claim joint venture or other dispute whichsimilar Contracts providing for a sharing of profits of the Refinery Business or any subsection thereof;
(vii) any Contract (other than Contracts for the purchase or sale of inventory or Contracts that are otherwise expressly required to be disclosed pursuant to any other subclause of this Section 4.5(a)) that provides for the payment or the Loss by, individually or in the aggregateLiability of, involve amounts exceeding $250,000 the Refinery Business (and will require the payment or which otherwise provide for any equitable remedy Loss by, or subject any LiveArea Company the Liability of, NewCo or any of its properties or assets to any EncumbrancesSubsidiaries) from and after the Closing of amounts in excess of $5,000,000; and
(xviiiviii) all currently effective agreements any Contract to which enter into any LiveArea Company is a party or by which agreement with respect to any of its assets or business is bound that involve amounts exceeding $500,000the matters described in any of the foregoing clauses of above.
(b) Except as set forth on Section 3.08(bSunoco has delivered or made available to TCG accurate and complete copies of all Material Contracts, together with all amendments thereto. There are no oral Material Contracts and no oral terms or conditions to any Material Contracts.
(c) To the Knowledge of the Disclosure Schedules: Sunoco, (i) each Material Contract is in full force and effect and is a legal, valid and binding on obligation of Sunoco or one of the LiveArea Company party thereto and Contributing Subsidiaries, enforceable against Sunoco or one of the Contributing Subsidiaries in accordance with its terms against such LiveArea Companyterms, except as enforcement may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other Laws affecting the enforcement of creditors’ rights generally and to Sellers’ Knowledgeexcept that the availability of equitable remedies, each other party theretoincluding specific performance, is subject to the Bankruptcy Exception, and immediately following the consummation discretion of the transactions contemplated herebycourt before which any proceeding therefor may be brought, shall continue (ii) none of Sunoco or any of the Contributing Subsidiaries is, or during the one (1) year prior to the date hereof has been, in material breach of any Material Contract nor has, to Sunoco’s Knowledge, any other party thereto and (iii) to Sunoco’s Knowledge, none of Sunoco or any of the Contributing Subsidiaries has received from any other party to any Material Contract written notification within the one (1) year prior to the date hereof that remains unresolved that such Material Contract is not in full force and effect; (ii) no Live Area Company is in default , that Sunoco or in breach in any material respect ofof the Contributing Subsidiaries has failed to perform its obligations thereunder to date, or, to Sellers’ Knowledge, alleged to be in breach in or that any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party thereto has not performed its obligations thereunder to each date.
(d) To the Knowledge of Sunoco, there are no bankruptcy, insolvency, reorganization, receivership or arrangement procedures pending with respect to any party to a Material Contract has performed all obligations that would reasonably be expected to result in all material respects required to be performed by it under such Material Contract and is not in default modification or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
Appears in 1 contract
Sources: Refining Contribution Agreement (Philadelphia Energy Solutions Inc.)
Material Contracts. (a) Section 3.08(a) Except as referred to in Schedule 3.12(a), none of the Disclosure Schedules lists each PED Subsidiaries is a party to any subsisting written contracts of the following contracts and other agreements of the LiveArea Business types (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “each a "Material Contracts”Contract"):
(i) each agreement employment or consulting contracts involving an amount in excess of a LiveArea Company $100,000 annually;
(ii) contracts involving aggregate consideration an amount in excess of $500,000 during FY 2020 and for the current calendar year and all shared customer contracts;
(ii) all agreements that relate to (A) the sale of any of the LiveArea Companies’ assetsfuture purchase of, other than in the ordinary course of business or (B) capital expenditures payment for, supplies, products or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent services (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments purchases of inventory in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contractpractice);
(xviiii) all currently effective agreements contracts involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development an amount in excess of $500,000 to sell or similar arrangementsupply products or to perform services (other than sale of inventory pursuant to customer purchase orders in the ordinary course of business consistent with past practice);
(xviiiv) all partnership or joint venture agreements;
(v) collective bargaining agreements with any labor union;
(vi) contracts limiting or restraining any PED Subsidiary from the prior three engaging or competing in any lines of business with any Person, contracts pursuant to which a PED Subsidiary has granted a third party exclusive rights with respect to sales of such PED Subsidiary's products, and contracts pursuant to which a third party has been granted "most favored nations" protection;
(3vii) years involving any resolution or settlement loan agreements, notes, mortgages, indentures, security agreements, letters of any actual or threatened litigation, arbitration, claim credit or other dispute which, individually contracts for the borrowing or lending of money by any PED Subsidiary;
(viii) License or other agreements with respect to Registered Intellectual Property;
(ix) other contracts involving amounts in the aggregate, involve amounts exceeding excess of $250,000 or 500,000 and which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrancescannot be terminated within one year without material cost;
(x) Real Property leases; and
(xviiixi) all currently effective settlement agreements with respect to any pending or threatened Proceeding entered into within three years prior to the date of this Agreement, other than (A) releases immaterial in nature or amount entered into with former employees or independent contractors of any PED Subsidiary in the ordinary course of business in connection with routine cessation of such employee's or independent contractor's employment with any PED Subsidiary or (B) settlement agreements for cash only (which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts has been paid) in an amount not exceeding $500,000100,000 as to such settlement.
(b) Except as set forth on Section 3.08(bSchedule 3.12(b), each PED Subsidiary has complied with its respective material obligations (as to which performance was due) of the Disclosure Schedules: (i) under each Material Contract is valid and binding on Contract. To the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Companyknowledge of Seller, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred whichwhich may be grounds for termination of any Material Contract. To the knowledge of Seller, with no other party is materially in default or, but for the passage requirements of notice or lapse of time or the giving of notice or both, would result be materially in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a) Schedule 3.08 sets forth a complete and correct list of the Disclosure Schedules lists each all agreements of the following contracts types to which NetWolves is a party or may be bound and other agreements all or any portion of the LiveArea Business which are currently in effect (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “"NetWolves Material Contracts”):
"): (i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts;
software technology development or sharing arrangements; (ii) all employment, severance, termination, consulting and retirement agreements; (iii) loan agreements, indentures, letters of credit, mortgages, notes and other debt instruments; (iv) agreements that relate require aggregate future payments to or by NetWolves of more than Twenty-five Thousand Dollars ($25,000); (v) outstanding purchase orders of NetWolves as of June 5, 1998; (vi) agreements containing any "change of control" provisions; (vii) agreements, arrangements or understandings with any employee, director or officer of NetWolves or with any affiliate thereof; (viii) agreements prohibiting NetWolves from engaging or competing in any line of business or limiting such competition; (ix) joint venture, partnership and similar agreements; (x) acquisition or divestiture agreements relating to the (A) the sale or purchase of any assets or interests of the LiveArea Companies’ assets, NetWolves (other than sales of inventory in the ordinary course of business business) or (B) capital expenditures the purchase of assets or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent person (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements purchase of inventory, supplies or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments equipment in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose business); (xi) brokerage, finder's or financial advisory agreements; (xii) guarantees of such contract;
indebtedness for borrowed money of any person; (xiii) customer contracts; (xiv) reseller and dealer agreements; (xvi) licensing and rights arrangements for any Intellectual Property (as defined); and (xv) agreements that, individually or together with one or more related agreements, are material to the operations, financial condition, business, assets or prospects of NetWolves. True and complete copies of all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development NetWolves Material Contracts have been delivered to the Watchdog Parties or similar arrangement;made available for inspection.
(xviib) all agreements from All Material Contracts are valid and in full force and effect and NetWolves has not (nor does it or any Member have any knowledge that any other party thereto has) violated any provision of, or committed or failed to perform any act which with or without notice, lapse of time or both would constitute a default under the prior three (3) years involving provisions of, any resolution or settlement of any actual or threatened litigationMaterial Contract, arbitrationexcept for defaults which would not have, claim or other dispute which, individually either singly or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000NetWolves Material Adverse Effect.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
Appears in 1 contract
Sources: Merger Agreement (Netwolves Corp)
Material Contracts. As of the date of this Agreement and except as otherwise expressly contemplated by this Agreement or as set forth on Schedule 4.10, neither the Company nor any of its Subsidiaries is a party to or bound by:
(a) Section 3.08(a) any individual lease of the Disclosure Schedules lists each of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):
(i) each agreement of a LiveArea Company involving aggregate consideration in excess real or personal property providing for annual rentals of $500,000 during FY 2020 and the current calendar year and all shared customer contracts5 million or more;
(iib) all agreements that relate to (A) the sale of any of the LiveArea Companies’ assets, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of Contract with any business, a material amount of stock or assets of any other Person Governmental Entity or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent Contract (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements purchase orders entered into the ordinary course of business consistent with past practice where such indemnification obligations are not practice) that is reasonably likely to require either (x) annual payments to or from the primary purpose Company or any of such contractits Subsidiaries of more than $5 million or (y) aggregate payments to or from the Company or any of its Subsidiaries of more than $5 million;
(xvic) all currently effective agreements involving other than with respect to any joint venturewholly owned Subsidiary of the Company, any partnership, strategic alliancejoint venture or other similar agreement or arrangement relating to the formation, shareholders’ agreementcreation, operation, management or control of any partnership or joint development venture material to the Company or similar arrangementany of its Subsidiaries or in which the Company or any of its Subsidiaries directly or indirectly owns more than a 15% voting or economic interest, or any interest valued at more than $5 million without regard to percentage voting or economic interest;
(xviid) all any Contract (other than among direct or indirect wholly owned Subsidiaries of the Company) relating to Debt in excess of $5 million;
(e) any non-competition Contract or other Contract that purports to limit either the type of business in which the Company or its Subsidiaries or, after consummation of the transactions contemplated hereby, Buyer or any of its Affiliates may engage or the manner or locations in which any of them may so engage in any business (for the avoidance of doubt, distribution agreements from and similar Contracts entered into in the prior three ordinary course of business consistent with past practice shall not be deemed to be covered by this Section 4.10(e) provided that such distribution agreements or similar Contracts do not in any way restrict Buyer or any of its Affiliates (3other than the Company and its Subsidiaries) years involving after consummation of the transactions contemplated hereby);
(f) any resolution Contract containing a standstill or settlement similar agreement pursuant to which one party has agreed not to acquire assets or securities of the other party or any of its Affiliates;
(g) any Contract with any Shareholder, Related Party, Affiliate, director or officer of the Company, or any Affiliate, shareholder, director or officer of any actual Subsidiary of the Company;
(h) any Contract providing for indemnification by the Company or threatened litigationany of its Subsidiaries of any Person, arbitrationexcept for any such Contract that is (x) not material to the Company or any of its Subsidiaries or is a purchase order and (y) entered into in the ordinary course of business consistent with past practice;
(i) any Contract that contains a put, claim call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of more than $5 million, other dispute whichthan the Midfield Shareholders Agreement; and
(j) any other Contract or group of related Contracts that, if terminated or subject to a default by any party thereto, is, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets reasonably likely to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default Material Adverse Effect. The Contracts described in any material respect by any LiveArea Company orSections 4.10(a) through (j), together with all exhibits and schedules to Sellers’ Knowledgesuch Contracts, by any party thereto (other than any LiveArea Company) under any are referred to herein as the “Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. Contracts.” A true and complete copy of each written Material Contract and a summary of the material terms of each oral Material Contract (including any amendments, modifications or renewals relating thereto, a copy of written terms proposed for Material Contracts not executed but excluding statements of workin which performance has begun) has have previously been delivered or made available to Buyers. The LiveArea Business has not incurred any material liability under any Buyer, and each Material Contract arising from is a breach of an express or implied warranty regarding a product or service valid and binding agreement of the LiveArea BusinessCompany or one of its Subsidiaries, as the case may be, and is in full force and effect, and neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party thereto is in default or received a claim regarding breach in any respect under the terms of any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessContract.
Appears in 1 contract
Sources: Stock Purchase Agreement (McJunkin Red Man Holding Corp)
Material Contracts. (a) Section 3.08(a3.20(a) of the Seller Disclosure Schedules lists each sets forth as of the date hereof a true, correct and complete list of the following contracts and other agreements Contracts to which any of the LiveArea Business Acquired Companies is a party or by which any of their respective business properties or assets is bound (together with all leases the Contracts required to be listed in on Section 3.09(f3.20(a) of the Seller Disclosure Schedules, collectively, the “Material Contracts”):
(i) each agreement Contract for the procurement of goods or services related to the Business with any vendor or supplier, which vendor or supplier accounted for a LiveArea Company involving aggregate consideration total amount invoiced to the Business during the twelve (12) month period immediately preceding December 31, 2020 in excess of $500,000 during FY 2020 and R$2,000,000 and, in any case, the current calendar year and all shared customer contractsfive (5) Contracts with the greatest such amounts;
(ii) all agreements that relate any Contract containing any future capital expenditure obligations of any Acquired Company in excess of R$2,000,000 during the remaining term of such Contract;
(iii) any partnership, joint venture, limited liability company agreement or other similar Contract involving co-investment by any Acquired Company with any other Person;
(iv) any Contract relating to the acquisition, disposition, sale or lease (excluding any real property lease) of any business, assets or properties (excluding any real properties) of or by any Acquired Company (whether by merger, sale of quotas or similar equity ownership, sale of assets or otherwise) under which (A) any Acquired Company has any remaining obligation to pay (including all potentially payable “earn out,” contingent purchase price or similar contingent payment obligations) (i) in excess of R$2,000,000, with respect to such acquisition, disposition or sale Contracts, or (ii) R$2,000,000, with respect to such lease (excluding any real property lease), or (B) any other Person has the sale right to acquire any assets of any Acquired Company after the date of this Agreement with a fair market value or purchase price in excess of R$2,000,000, excluding, in each of the LiveArea Companies’ assetsforegoing clauses (A) and (B), acquisitions or dispositions of services, supplies, inventory or products in the ordinary course of the conduct of the Business;
(v) any Contract that (A) restricts or limits, or purports to restrict or limit, in any material respect the ability of any Acquired Company to compete in any business or with any Person or in any geographic area, (B) contains material exclusivity obligations or restrictions binding on the Business or any Acquired Company (unless such Contract is a commercial sales representative agreement) or (C) requires the Business or any Acquired Company to conduct any business on a “most favored nation” basis with any Person, in each case, other than Contracts (x) containing customary non-solicitation and no-hire provisions entered into in the ordinary course of business or (By) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
that can be cancelled by an Acquired Company without penalty upon no more than thirty (iii30) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other handdays’ notice;
(vi) all currently effective collective bargaining agreements or agreements with any labor organizationContract, union or association including Contracts relating to the IT Systems, pursuant to which a LiveArea an Acquired Company (A) receives or is a party;
granted any license (viiincluding any sublicense) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment incovenant not to be sued under, any Person;
Intellectual Property (xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than licenses to commercially available software made available on a Permitted Encumbrance non-exclusive basis for license fees of less than R$2,000,000 per year) or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with grants any Personlicense (including any sublicense) to, or covenant not to be sued under, any Company Intellectual Property (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customernon-material and non-exclusive licenses of Company Intellectual Property granted to vendors, vendorsuppliers, licensing and other agreements entered into resellers or customers in the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contractpractice);
(xvivii) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development Contract relating to or similar arrangementevidencing Indebtedness of any Acquired Company for borrowed money in excess of R$2,000,000 individually in the last twelve (12) months;
(xviiviii) all agreements from any Contract between or among an Acquired Company, on the prior three one hand, and Seller or any Affiliate of Seller (3other than an Acquired Company), on the other hand; and
(ix) years involving any resolution Contract that is a settlement, release or settlement compromise agreement pursuant to which an Acquired Company (A) is required to pay after the date hereof consideration in excess of R$2,000,000 or (B) is subject to material ongoing obligations to any actual or threatened litigation, arbitration, claim or other dispute whichGovernmental Body.
(b) Except as would not, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets reasonably be expected to any Encumbrances; and
(xviii) all currently effective agreements be material to which any LiveArea Company is the Business and the Acquired Companies, taken as a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: whole, (i) each Material Contract is a legal, valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea obligation of an Acquired Company, and as applicable, and, to Sellers’ Seller’s Knowledge, each other party thereto, subject to the Bankruptcy Exception, counterparty and immediately following the consummation of the transactions contemplated hereby, shall continue is in full force and effect; , (ii) no Live Area Company none of the Acquired Companies nor, to Seller’s Knowledge, any other party thereto, is in default breach of, or in breach in any material respect ofdefault under, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; , and (iviii) no event has occurred which, that with the passage or without notice or lapse of time or the giving of notice or both, both would result in constitute such a breach or default in thereunder by the Acquired Companies or any material respect by any LiveArea Company of their applicable Subsidiaries, or, to Sellers’ Seller’s Knowledge, by any other party thereto (other than any LiveArea Company) under any Material Contractthereto. No counterparty party to any Material Contract (excluding statements of work) has exercised any termination rights or otherwise provided written or, to Seller’s Knowledge, other notice to the LiveArea Pre-Reorg Parties of cancellation or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated termrespect thereto. A true true, correct and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements in effect as of work) the date hereof has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessBuyer by Seller.
Appears in 1 contract
Sources: Quotas Purchase Agreement (Compass Minerals International Inc)
Material Contracts. (a) Section 3.08(aSchedule 5.18(a) contains a complete and accurate list, and, upon the written request of Purchaser, Seller shall make available to Purchaser, true and complete copies (or in the Disclosure Schedules lists each case of any oral Contracts, a written summary) of, the following contracts and other agreements of the LiveArea Business Contracts (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):
(i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 Assumed Contracts and the current calendar year and all shared customer contractsLeases;
(ii) all agreements Contracts that relate to (Aw) the sale have an unexpired term of any of the LiveArea Companies’ assetsone year or more, other than (x) are executory in the ordinary course of business whole or in part, (By) capital are not terminable on sixty (60) days or less notice, and (z) involve expenditures or development costs or expenses, for consideration receipts of Seller in excess of $500,000 in the aggregate50,000 per year;
(iii) all agreements that relate Contracts providing for payments of commissions to or by any Person based on the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise)Petroleum Inventory;
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) Contracts creating an encumbrance on any of the LiveArea CompaniesPurchased Assets that will not be discharged at or prior to the Closing;
(v) all currently effective agreements between Contracts relating to the sale or among a LiveArea Company on other disposition of any Purchased Assets, except for the one hand and Parent or any Affiliate sale of Parent (other than a LiveArea Company) on Petroleum Inventory in the other handOrdinary Course of Business;
(vi) all currently effective collective bargaining agreements outstanding standby letters of credit, guarantees, subordination and indemnity Contracts, whether or agreements with not entered into in the Ordinary Course of Business, under which Seller may become liable for or obligated to discharge, or any labor organizationPurchased Assets of Seller that are or may become subject to the satisfaction of, union any indebtedness, obligations, performance or association to which a LiveArea Company is a partyundertaking of any other Person involving the potential expenditure by Seller after the Effective Date of more than $100,000 in any instance;
(vii) all currently effective employment current and active dealer Contracts to which Seller is a party, including, but not limited to, all supply agreements, consignment agreements, commission agreements and restrictive covenant agreements by and between Seller and Seller’s dealers, managers or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Companyoperators;
(viii) all existing Benefit PlansContracts pursuant to which Seller is eligible to receive rebates, profit sharing, discounts, credits or similar consideration;
(ix) all currently effective leases, licenses or other agreements requiring severance payments relating to the Seller Real Properties, the Property Seller Real Properties or the Leased Real Properties whereby Seller is the (sub)landlord or (sub)licensor; {B0968884.12}
(x) Contracts related to the engagement of, or the performance of services by, any consultant or independent contractor who provides services for Seller at the Locations and involve expenditures in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person50,000 per year;
(xi) all currently effective agreements granting Contracts imposing any material restriction on such Seller’s right or evidencing an Encumbrance on ability (A) to compete with any property other person or entity with respect to any of the Locations, (B) with respect to the Locations, to acquire any product or other asset or any services from any other person or entity, to sell any product or other asset to or perform services for any other person or entity, or to transact business or deal in any other manner with any other person or entity, or (C) to develop any of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closingthe Locations;
(xii) all currently effective Real Property Leases;Contracts creating or relating to any partnership or joint venture or any material sharing of revenues, profits, losses, costs or liabilities relating to any of the Locations; and
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto each amendment, supplement and modification (whether oral or which purport to restrict or limit any LiveArea Company from (Awritten) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations respect of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into of the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000foregoing.
(b) Except as set forth on Section 3.08(b) Schedule 5.18(b), to the Knowledge of the Disclosure Schedules: (i) Seller, each Material Contract is in full force and effect and is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Companyterms, except as enforceability thereof may be limited by bankruptcy, insolvency or other Laws affecting creditors’ rights generally and limitations on the availability of equitable remedies.
(c) Except as set forth on Schedule 5.18(c), for each Material Contract: (i) Seller is, and to Sellers’ Knowledgeat all times has been, in material compliance with all applicable terms and requirements of each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effectContracts to which it is a party; (ii) no Live Area Company is to the Knowledge of Seller, each other Person that has or had any obligation or liability under any such Contracts is, and at all times has been, in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material compliance with all applicable terms and requirements of such Contract; (iii) no event has occurred or, to Sellers’ Knowledgethe Knowledge of Seller, each no 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 Seller or other party Persons the right to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in declare a default or in breach in exercise any material respect of remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any such Material Contract; and (iv) no event Seller has occurred which, with the passage of time not given to or the giving of received from any Person any notice or bothother communication regarding any actual, would result in a alleged, possible, or potential violation or breach of, or default under, any Contract.
(d) Schedule 5.18(d) contains a complete and accurate list, and Seller, upon written request by Purchaser, will make available to Purchaser true and complete copies, of each power of attorney relating to the Purchased Assets that is currently effective and outstanding.
(e) Except as set forth on Schedule 5.18(e), there are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any amounts paid or payable to Seller in any material respect by any LiveArea Company oran amount individually in excess of $100,000, to Sellers’ Knowledgeor in the aggregate exceeding $250,000, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice , and to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate Knowledge of Seller no such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) demand has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Businessmade.
Appears in 1 contract
Sources: Asset Purchase Agreement (CrossAmerica Partners LP)
Material Contracts. (a) Section 3.08(a) As of the Disclosure Schedules lists each of Execution Date, except for the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) 3.13 of the Seller Disclosure Schedules, collectively, Schedules (the “Material Contracts”):), none of the Company or any Company Subsidiary is a party to or bound by any of the following:
(ia) each agreement of a LiveArea any Contracts which would reasonably be expected to involve payments to or from the Company involving aggregate consideration in excess or any Company Subsidiary of $500,000 during FY 2020 and 1,000,000 or more in any twelve-month period, pursuant to which the current calendar year and all shared customer contractsCompany or applicable Company Subsidiary gathers, transports, stores, sells or purchases hydrocarbons or the products therefrom;
(iib) all agreements any Contracts for the construction of gathering or other pipeline systems or processing, compression, treating or storage facilities which would reasonably be expected to involve payments to or from the Company or any Company Subsidiary of $100,000 or more in any 12-month period, other than any such contracts that relate are terminable by the Company or applicable Company Subsidiary on 90 or fewer days’ notice without penalty;
(c) any Contracts (not described in clause (a) or (b) above) which would reasonably be expected to (A) involve payments to or from the Company or any Company Subsidiary of $1,000,000 or more in any twelve-month period, other than Contracts relating to the sale of any of obsolete or excess assets not required for the LiveArea Companies’ assets, other than Company’s operations in the ordinary course of business and Contracts that are terminable by the Company or applicable Company Subsidiary on 90 or fewer days’ notice without penalty;
(Bd) capital expenditures any outstanding futures, swap, option, hedging, forward sale or development costs other derivative Contracts involving hydrocarbons or expensesother commodities;
(e) any Contract that contains a covenant of any of the Company or the Company Subsidiaries that materially limits or purports to limit the ability of the Company or any Company Subsidiary to compete in any line of business or with any Person in any geographic area;
(f) any Contract not listed in Section 3.13 of the Seller Disclosure Schedules for clauses (a)-(c) of this Section 3.13 providing for the indemnification of any Person (other than the Company or a Company Subsidiary) other than entered into or assumed in the ordinary course of business;
(g) any Contracts with Seller or Affiliates of Seller (other than the Company or the Company Subsidiaries), for consideration or any family member of any Affiliate;
(h) any Contract which relates to Indebtedness under which the Company or any Company Subsidiary has outstanding obligations in excess of $500,000 in (other than any such Contracts relating to intercompany Indebtedness between the aggregate;
(iii) all agreements that relate to Company and any of the acquisition of any business, a material amount of stock Company Subsidiaries or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwiseamong the Company Subsidiaries);
(ivi) except for agreements relating any Contract with a supplier, vendor or service provider granting such supplier, vendor or service provider exclusive rights to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companiesprovide such product or service;
(vj) all currently effective agreements between any employment agreement or among a LiveArea Contract with independent contractors or consultants that are not terminable by the Company or applicable Company Subsidiary on the one hand and Parent 90 or any Affiliate of Parent (other than a LiveArea Company) on the other handfewer days’ notice without penalty;
(vik) any Contract relating to the acquisition or disposition of all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) substantially all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm assets or agency engaged in any operating business or a majority of the provision capital stock or other controlling interest of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any other Person;
(xil) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of Contract relating to any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development venture or similar arrangement;
(xviim) all agreements from any Contract that grants to any Person a right to purchase (including rights of first refusal, options or similar rights) any material assets of the prior three Company or any Company Subsidiary; or
(3n) years involving any resolution other Contract that is material to the Company and the Company Subsidiaries, taken as a whole, or settlement the business of any actual or threatened litigation, arbitration, claim or other dispute whichthe Company and the Company Subsidiaries and not otherwise described in this Section 3.13. Except as would not, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets reasonably be expected to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is have a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except Material Adverse Effect, each Material Contract, as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract Execution Date, is in full force and effect and constitutes a legal, valid and binding on agreement of the LiveArea Company party thereto and or the applicable Company Subsidiary, enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws affecting the Bankruptcy Exceptionenforcement of creditors’ rights generally or by general equitable principles). Except as would not, and immediately following individually or in the consummation aggregate, reasonably be expected to have a Material Adverse Effect, none of the transactions contemplated herebyCompany or any Company Subsidiary has received written notification, shall continue or, to the Knowledge of Seller, any other notification, that any Material Contract is not in full force and effect; (ii) no Live Area , or that the Company is in default or in breach in the Company Subsidiary or any material respect ofother party thereto has breached its obligations thereunder, orand, to Sellers’ Knowledgethe Knowledge of Seller, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, that (with the passage of time or the giving of without notice or both, lapse of time) would reasonably be expected to result in a breach or violation of, or a default in any material respect by any LiveArea Company orunder, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to the terms of any Material Contract (excluding statements of work) has provided written notice to by the LiveArea Pre-Reorg Parties Company or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessSubsidiary.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (NuStar Energy L.P.)
Material Contracts. (a) Section 3.08(a4.06(a) of the Disclosure Schedules lists each of the following contracts and other agreements Contracts (x) by which any of the LiveArea Purchased Assets are bound or affected, (y) to which Seller is a party or by which it is bound primarily in connection with the Business or the Purchased Assets or (z) which relate or pertain to the Business but is not part of the Purchased Assets (together with all leases Leases listed in Section 3.09(f4.09(a) of the Disclosure Schedules, but excluding any Benefit Plan and any Excluded Assets, collectively, the “Material Contracts”):
(i) each agreement all master service agreements for the license of a LiveArea Company involving aggregate consideration Seller’s self-service demand side platform (DSP), pursuant to which the Business earned revenue in excess of $500,000 25,000 during FY 2020 and fiscal 2017 or which are otherwise material to the current calendar year and all shared customer contractsBusiness;
(ii) all agreements Contracts pursuant to which the Seller licenses data from a third party and which are material to the Business;
(iii) any Contract relating to capital expenditures or other purchases of material, supplies, equipment or other assets or properties or services by Seller (other than purchase orders for inventory or supplies in the ordinary course of business) in excess of $25,000 individually, or $50,000 in the aggregate, during the 12-month period preceding the date hereof;
(iv) all Contracts (including, without limitation, letters of intent) that relate to the disposition or acquisition of assets or properties (A) the sale of any of the LiveArea Companies’ assets, other than in the ordinary course of business) involving consideration of more than $25,000, individually or $50,000 in the aggregate, or any merger, consolidation or similar business combination transaction, whether or not enforceable, or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate relating to the acquisition by Seller of any business, a material amount of stock operating business or assets Equity Interest of any other Person or pursuant to which such Seller has any real property (whether by merger, sale obligations as of stock, sale of assets or otherwise)the date hereof;
(ivv) except for agreements relating to trade receivables, all agreements Contracts relating to Indebtedness and any guaranty agreement or other evidence of Indebtedness, including capitalized lease obligations;
(vi) all Contracts containing provisions (A) that expressly limit the ability of the Business to engage in any business activity or compete with any Person, or the expansion thereof to other geographical areas, customers, suppliers or lines of business, (B) limiting solicitation of employees or clients, or (C) that grants the other party or any third person “most favored nation” or similar status;
(vii) any Contract (or group of related Contracts) relating to payments by or to Seller of more than $25,000 individually or $50,000 in the aggregate during the 12-month period preceding the date hereof or which is reasonably likely to require payments by or to Seller after the date hereof in excess of such amounts;
(viii) any Contract pursuant to which Seller subcontracts work to third parties;
(ix) any Contract (including, without limitation, guaranteesletters of intent) (A) involving the future disposition or acquisition of assets or properties (other than in the ordinary course of business) involving consideration of more than $25,000, individually or $50,000 in the aggregate, or any merger, consolidation or similar business combination transaction, whether or not enforceable, or (B) relating to the acquisition by Seller of any operating business or Equity Interest of any other Person pursuant to which such Seller has any obligations as of the LiveArea Companiesdate hereof;
(vx) all currently effective agreements between any lease (whether as lessor or among a LiveArea Company on the one hand and Parent lessee) of Tangible Personal Property providing for annual rentals of $10,000 or any Affiliate of Parent (other than a LiveArea Company) on the other handmore;
(vixi) all currently effective collective bargaining agreements any Contract that restricts or agreements limits the ability of any individual Business Employee to engage in any business, solicit customers or employees of Seller, or compete with any labor organization, union Seller or association to which a LiveArea Company is a partythe Business during or following employment with Seller;
(viixii) all currently effective employment Contracts that are intercompany agreements relating to the Business or consulting agreements providing for the Purchased Assets;
(xiii) any Contract (or group of related Contracts) which is not terminable on less than ninety (90) days’ notice or that contains a minimum annual salaries or payments commitment in excess of $350,00050,000;
(xiv) any Contract with third-party sales agents, including target level awards sales representatives, brokers or distributors, none of which are Business Employees;
(xv) any Contract creating a shareholders’ agreement, strategic alliance, partnership, joint venture agreement, development, joint development or similar arrangement which is material to the Business;
(xvi) any Contract entered into by Seller granting a license or other grant of rights to any third party for the use of any Intellectual Property Assets and any Contract entered into by Seller in which a license or other grant of rights is provided to Seller for the use of any intellectual property rights of any third party (other than off-the-shelf, commercially available Software), in each case including, without limitation, royalty Contracts or management, consulting or advisory contracts (collectively, the “Material IP Contracts”);
(xvii) any Leased Real Property;
(xviii) any Contract granting any Person an Encumbrance on any of the Purchased Assets, other than Permitted Encumbrances;
(xix) any Contract of any character (contingent or otherwise) pursuant to which any consultant is or may be entitled to receive any payment based on the revenues, earnings or financial performance or assets of the Business or calculated in accordance therewith;
(xx) any Contracts with any Governmental Authority;
(xxi) any Contract that relates to the settlement of any legal proceeding;
(xxii) any other Contract that would be required to be filed with the United States Securities and Exchange Commission as an exhibit to a registration statement on Form S-1 if the Business was registering securities under the Parent’s short term and long term incentive plans but excluding commissions Securities Act;
(xxiii) any Contract or other arrangements between Seller, on the one hand, and any amounts payable Related Parties, on the other hand (each, an “Affiliate Arrangement”); and
(xxiv) any Contract not listed above that is material to Employees by Parent the Business.
(b) Seller has made available to Buyer true and complete copies of all Material Contracts and all amendments thereto. Except as would not, individually or PFS in the aggregate, be expected to be material to the Business taken as a result whole, each Material Contract (i) is valid and binding on Seller and, to the Knowledge of Seller, the counterparties thereto and is in full force and effect, enforceable against Seller, and, to the Knowledge of Seller, against all third parties, in each case in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law); and (ii) shall continue in full force and effect upon consummation of the transactions contemplated by this Agreement, and enforceable against Buyer, and, to the Knowledge of Seller, against all agreements third parties, in accordance with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan toits terms, or investment inexcept as enforcement may be limited by applicable bankruptcy, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Companyinsolvency, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of businessreorganization, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development moratorium or similar arrangement;
laws affecting creditors’ rights generally and by general principles of equity (xvii) all agreements from the prior three (3) years involving any resolution regardless of whether considered in a proceeding in equity or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) at law). Except as set forth on in Section 3.08(b4.06(b) of the Disclosure Schedules: (i) each Material Contract , Seller is valid and binding on the LiveArea Company party thereto and enforceable not in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in material breach in any material respect of, oror default (with or without the giving of notice, to Sellers’ Knowledge, alleged to be in breach in any material respect oflapse of time or both) under, any Material Contract; (iii) to Sellers’ Knowledge. To the Knowledge of Seller, each no other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice is in breach or default thereunder, nor, to the LiveArea Pre-Reorg Parties Knowledge of Seller, does any condition exist that with the lapse of time or both would constitute a default by any LiveArea Company an intention such other party thereunder. No other party to any Material Contract has (i) notified Seller that such other party intends to cancel or otherwise terminate such Material Contract or (xii) prior since January 1, 2018, taken any action or threatened to its stated termination datetake any action, in the case with respect to seeking a repayment of a amounts paid to Seller pursuant to such Material Contract with or a stated term reduction in fees or (y) within one year following the Closing Date, in the case of a other payments that will become due to Seller pursuant to such Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessContract.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a3.12(a) of the Company's Disclosure Schedules lists each Letter --------------- includes a list of the following contracts agreements, Contracts or other instruments in effect and other agreements of binding upon the LiveArea Business Company (together with including all leases listed in Section 3.09(famendments thereto) of the Disclosure Schedules, (collectively, the “"Material Contracts”):
"): (i) agreements, Contracts or ------------------ other instruments which have been filed by the Company with the SEC pursuant to the requirements of the Exchange Act as "material contracts"; (ii) agreements, Contracts or other instruments which are required to be filed by the Company with the SEC pursuant to the requirements of the Exchange Act as "material contracts" and have not been filed; (iii) each Company Employee Plan; (iv) any agreement or indenture relating to the borrowing of a LiveArea Company involving aggregate consideration money in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts;
150,000 in principal amount or mortgaging, pledging or otherwise placing a Lien (iiother than a Permitted Lien) all agreements that relate to (A) the sale of on any portion of the LiveArea Companies’ assets, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration Company's assets to secure an obligation in excess of $500,000 150,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
principal amount; (v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or guaranty of any Affiliate obligation for borrowed money in excess of Parent (other than a LiveArea Company) on the other hand;
$150,000 in principal amount; (vi) all currently effective collective bargaining of the leases, subleases, licenses and other material agreements relating to or agreements with any labor organization, union or association to which a LiveArea Company is a party;
constituting real property; (vii) all currently effective employment any lease or consulting agreements agreement under which it is lessee of or holds or operates any personal property owned by any other party with annual payments of at least $150,000; (viii) contract or group of related contracts with the same party for the supply of wine to any Person or providing for deliveries extending beyond December 31, 2001 with annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
150,000; (ix) all currently effective agreements requiring severance payments any contract or group of related contracts with the same party for the purchase of goods (including grapes or bulk wine), inventories, supplies or services, under which the undelivered balance of such goods, inventories, supplies or services has a purchase price in excess of $100,000 in the aggregate to Employees;
150,000; (x) all agreements involving any contract or relating to group of related contracts with the same party for the sale of products or services in an outstanding loan to, or investment in, any Person;
amount in excess of $150,000; (xi) all currently effective manufacturer's representative, sales agency and distribution contracts and agreements granting that have a term of one year or evidencing an Encumbrance more and are not terminable by the Company on any property notice of six months or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
less without penalty; (xii) all currently effective Real Property Leases;
(xiii) all currently effective contracts and agreements that provide for exclusive dealings between prohibiting or materially restricting the parties thereto or which purport ability of the Company to restrict or limit any LiveArea Company from (A) engaging compete in any line of business, (B) competing geographic area with any Person, other than (CA) doing business distribution (including independent sales representative) contracts and agreements that have a term of less than one year or are terminable by the Company on notice of six months or less without penalty, and, in each case, which are not material to the Company and (B) supplier and customer agreements relating to non- disclosure of confidential information of the other party which are not material to the Company; (xiii) any other contract or commitment involving the payment by or to the Company of $150,000 or more (whether in cash or other assets) in any geographical area twelve month period or more (Dwhether in cash or other assets) soliciting or engaging any clients;
than $150,000 in the aggregate over the life of the contract; (xiv) all currently effective customer stockholder, voting trust or similar contracts and agreements granting relating to the voting of shares or providing any “most favored nation” rights other equity or best price protection;
debt interests of the Company known to the Company; or (xv) joint venture agreements, partnership agreements and other similar contracts and agreements involving a sharing of profits and expenses. The Company has made available to Parent, prior to the date hereof, true, correct and complete copies in all currently effective agreements setting forth obligations material respects of each such Material Contract. To the Knowledge of the Company, the representations made in this Section 3.12(a) would also be true and correct if the references to --------------- $150,000 in this Section 3.12(a) were reduced to $50,000, so long as --------------- Material Contracts for the purchase or sale of grapes and wine are not included.
(i) The Company has not breached, is not in default under, and has not received written notice of any LiveArea Company breach of or default under (or, would be in default, breach or violation with notice or lapse of time, or both), any Material Contract, (ii) to indemnify the Knowledge of the Company, no other party to any third party, other than customer, vendor, licensing and other agreements entered into of the ordinary course Material Contracts has breached or is in default of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
obligations thereunder, and (xviiiiii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) each of the Disclosure Schedules: (i) each Material Contract Contracts is valid in full force and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Companyeffect, and will continue to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, be in full force and immediately effect following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach except in any material respect ofsuch case for breaches, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default defaults or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, failures that in the case of aggregate do not have a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessAdverse Effect.
Appears in 1 contract
Material Contracts. (aSchedule 4.1(r) Section 3.08(a) set forth the Contracts to which any Seller is a party with respect to the Acquired Business or by which any of them or their assets may be bound in connection with the Disclosure Schedules lists each of the following contracts and other agreements of the LiveArea Acquired Business (together with all leases listed each such Contract required to be disclosed in Section 3.09(f) Schedule 4.1(r), including each such Contract entered into after the date of the Disclosure Schedulesthis Agreement, collectively, the a “Material ContractsContract”):
(i) each agreement any Contract (other than purchase orders with suppliers or customers entered into in the Ordinary Course of a LiveArea Company involving Business) that Sellers reasonably anticipate will involve aggregate consideration in excess payments by or to Sellers of more than $500,000 during FY 2020 and the current calendar year and all shared customer contracts50,000;
(ii) all agreements that relate any Contract for the lease of real or personal property in which the amount of payments which the Acquired Business is required to make, or is entitled to receive, on an annual basis exceeds $50,000;
(iii) any material distribution, franchise, license, sales, commission, consulting agency or advertising Contract which (A) the sale involves annual payments in excess of any of the LiveArea Companies’ assets, other than in the ordinary course of business $50,000 or (B) is not cancellable on thirty (30) calendar days’ notice without payment or penalty;
(iv) any Contract relating to or instrument evidencing, any Assumed Liabilities;
(v) any Contract entered into during the last five (5) years (or under which there are continuing material obligations) relating to the sale or disposition of material assets (other than the sale of inventory or obsolete or worn-out assets or assets replaced in the Ordinary Course of Business);
(vi) any license agreement or other Contract relating to Intellectual Property that is necessary or otherwise material to the operation of the Acquired Business;
(vii) any joint venture Contract, partnership agreement, or limited liability company agreement or other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Seller with any other Person;
(viii) any Contract providing for capital expenditures or development costs or expenses, for consideration after the date hereof in an amount in excess of $500,000 100,000 individually or in the aggregate;
(iiiix) all agreements that relate any written warranty, guaranty or other similar undertaking with respect to the acquisition of contractual performance extended by any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (Seller other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision Ordinary Course of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to EmployeesBusiness;
(x) all agreements involving any written employment or relating collective bargaining agreement or Contract with any labor union or any labor organization applicable to an outstanding loan toemployees, or investment inContract with any director, any Person;
(xi) all currently effective agreements granting officer, employee or evidencing an Encumbrance on any property or asset of any LiveArea Companyconsultant, other than a Permitted Encumbrance those (1) that are terminable at-will by the applicable Seller on no more than thirty (30) days’ notice without liability or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, financial obligation or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
Appears in 1 contract
Sources: Asset Purchase Agreement
Material Contracts. Except for the material contracts described ------------------ in Schedule 2.21 (collectively, the "Material Contracts") LLC is not a ------------- party to or bound by any material contract, including without limitation:
(a) Section 3.08(aany distributor, sales, advertising, agency or manufacturer's representative contract and which involves more than $25,000;
(b) any continuing contract for the purchase of materials, supplies, equipment or services involving in the case of any such contact more than $25,000 over the life of the Disclosure Schedules lists each contract;
(c) any material contract that expires or may be renewed at the option of any person other than the LLC so as to expire more than one year after the date of this Agreement;
(d) any trust indenture, mortgage, promissory note, loan agreement or other contract for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the following contracts type required to be capitalized in accordance with GAAP;
(e) any contract for capital expenditures in excess of $25,000 individually and $50,000 in the aggregate;
(f) any contract pursuant to which LLC leases any real property;
(g) any contract pursuant to which the LLC leases of any material machinery, equipment, motor vehicles, office furniture, fixtures or other agreements personal property with value exceeding $25,000;
(h) any contract with any person with whom the LLC does not deal at arm's length within the meaning of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):Internal Revenue Code;
(i) each any agreement of a LiveArea Company involving aggregate consideration guarantee, support, indemnification, assumption or endorsement of, or any similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other Person in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts25,000;
(iij) all agreements that relate any license, sublicense or other agreement to which LLC is a party (or by which it or any Proprietary Rights owned or licensed by LLC is bound or subject) and pursuant to which any person has been or may be assigned, authorized to use, or given access to any Proprietary Rights owned or licensed by LLC in excess of $25,000 other than (A) the sale access to or use of any of the LiveArea Companies’ assetsstandard object code product pursuant to a customary non-exclusive end- user, other than object code, internal-use software license and support/maintenance agreements entered into in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration access provided in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contractunder a customary nondisclosure/nonuse agreement;
(xvik) all currently effective any license, sublicense or other agreement in excess of $25,000 pursuant to which LLC has been or may be assigned or authorized to use, or has or may incurred any obligation in connection with, (A) any third party Proprietary Rights or (B) any LLC Proprietary Rights other than customary non-exclusive, end-user, object code, internal-use software license and support/maintenance agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangemententered into in the ordinary course of business;
(xviil) any agreement pursuant to which LLC has deposited or is required to deposit with an escrow holder or any other person or entity, all agreements from or part of the prior three source code (3or any algorithm or documentation contained in or relating to any source code) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any EncumbrancesLLC Intellectual Property ("Source Materials"); and
(xviiim) all currently effective agreements any agreement to which indemnify, hold harmless or defend any LiveArea Company is a party other person with respect to any assertion of personal injury, damage to property or by which any Proprietary Rights infringement, misappropriation or violation or warranting the lack thereof in excess of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company50,000, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result than indemnification provisions contained in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, customary purchase orders/purchase agreements/product licenses arising in the case ordinary course of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Businessbusiness.
Appears in 1 contract
Sources: Purchase Agreement (Actuate Corp)
Material Contracts. (a) Section 3.08(a) of Except as listed on Schedule 4.11 or any other schedule hereto, ------------- the Disclosure Schedules lists each Companies and their respective Subsidiaries are not a party to any of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Scheduleseach, a "Material Contract" and, collectively, the “"Material ----------------- -------- Contracts”"):
(i) each agreement material contract not made in the ordinary course of a LiveArea Company involving aggregate consideration business ---------- that obligates the Companies or one of their Subsidiaries to make payments in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts;
50,000 per year; (ii) all agreements that relate to contract for the employment of any officer or employee; (Aiii) contract for the future purchase of materials, supplies, services, merchandise or equipment not capable of being fully performed or not terminable within a period of one (1) year <PAGE> from the date hereof or in excess of normal operating requirements; (iv) agreement for the sale or lease of any of the LiveArea Companies’ assets, its assets other than in the ordinary course of business business; (v) contract or (B) commitment for capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
50,000; (vi) all currently effective collective bargaining agreements mortgage, pledge, conditional sales contract, security agreement, factoring agreement, or agreements other similar agreement with respect to any labor organization, union of its real or association to which a LiveArea Company is a party;
personal property; (vii) all currently effective employment lease of machinery or consulting agreements providing for equipment involving annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
50,000; (viii) all existing Benefit Plans;
agreement with a labor union or labor association; (ix) all currently effective agreements requiring severance loan agreement, promissory note issued by it, guarantee, subordination or similar type of agreement; (x) stock option, retirement, severance, pension, bonus, profit sharing, group insurance, medical or other fringe benefit plan or program providing employee benefits; (xi) consulting agreement involving annual payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to50,000, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing contracts with any Person, (C) doing business in Person containing any geographical area provision or (D) soliciting covenant prohibiting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations limiting the ability of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea either Company or any of its properties Subsidiaries to engage in any business activity or assets to compete with any EncumbrancesPerson; and
(xviiixiii) all currently effective agreements to which partnership, joint venture, shareholders' or other similar contracts with any LiveArea Person; (xiv) contracts with representatives and sales agencies; (xv) contracts between or among either Company is a party or by which any of its Subsidiaries, on the one hand, and either Seller, any officer, director or other Affiliate of Seller, on the other hand; (xvi) contracts that (A) limit or contain restrictions on the ability of either Company or any of its Subsidiaries to declare or pay dividends on, to make any other distribution in respect of or to issue or purchase, redeem or otherwise acquire its capital stock, to incur Indebtedness, to incur or suffer to exist any Encumbrance, to purchase or sell any assets and properties, to change the lines of business in which it participates or engages or to engage in any business is bound that involve amounts exceeding combination or other similar transaction or (B) require either Company or any of its Subsidiaries to maintain specified financial ratios or levels of net worth or other indicia of financial condition; or (xvii) contracts relating to Indebtedness of either Company or its Subsidiaries in excess of $500,000.
50,000 or to preferred stock issued by either Company or its Subsidiaries; (b) Each contract required to be disclosed in Schedule 4.11 is in ------------- full force and effect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms, of each party thereto. Except as set forth on Section 3.08(b) of Schedule 4.11, the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Companies have not received any written notice that ------------- a Company is in default under or in breach in any material respect of, or, has failed to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed perform all obligations in all material respects required to be performed by it under such each Material Contract and is not in default or in breach in neither the Companies nor, to the Knowledge of the Sellers, any material respect of other party to any such Material Contract; and , is (iv) no event has occurred which, with or without the passage lapse of time or the giving of notice or both, would result ) in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by thereunder. The Companies have not been notified that any party thereto (other than to any LiveArea Company) Material Contract intends to cancel, terminate, not renew or exercise an option under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
Appears in 1 contract
Sources: Stock Purchase Agreement
Material Contracts. (a) Section 3.08(a) Schedule 3.16 of the Disclosure Schedules lists a true, correct and complete list of each of the following contracts and other agreements of Contracts (collectively with the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectivelyLeases that are Transferred Contracts, the “Material Contracts”):
(i) each agreement any Contract that would be required to be filed by Seller Parent as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by Seller Parent on a LiveArea Company involving Current Report on Form 8-K;
(ii) Contracts with any Affiliate or current or former officer, director, or employee of any Seller (other than employment related Contracts);
(iii) Contracts relating to the acquisition by any Seller of any operating business, real property, capital expenditures (including capital expenditures relating to information technology systems) or securities of any other Person (other than any Seller) (including investment in joint ventures and minority equity investments but excluding accounts receivable or other forms of trade credit) for aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts;
(ii) all agreements that relate 250,000 pursuant to (A) the sale of any of the LiveArea Companies’ assetswhich there are remaining liabilities, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise)including contingent liabilities;
(iv) except for agreements all Contracts relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companiesindebtedness for borrowed money;
(v) all currently effective collective bargaining agreements between or among a LiveArea Company on the one hand and Parent other labor related agreements or any Affiliate of Parent (other than a LiveArea Company) on the other handarrangements;
(vi) all currently effective collective bargaining agreements Contracts regarding a guaranty, undertaking to be liable for the debts of any Person other than a Seller or agreements with provision of an indemnity in respect of liabilities, obligations or commitments of any labor organizationPerson other than a Seller, union or association to which a LiveArea Company is a partyin each case in excess of $500,000;
(vii) all currently effective any Contract (or group of related Contracts) the performance of which, in the twelve (12) months preceding the date hereof has resulted in, or in the twelve (12) months following the Agreement would reasonably be expected to result in, consideration or payment in excess of $2,000,000 per annum to or from any Seller;
(viii) any Contract pursuant to which a Seller (A) is granted or obtains or agrees to grant or obtain any right to use or otherwise exploit any material Intellectual Property, (B) is restricted in its right to use or register any material Intellectual Property, or (C) permits or agrees to permit any other Person to use, enforce or register any material Intellectual Property, including any license agreements, coexistence agreements and covenants not to ▇▇▇;
(ix) any material Contract or consent decree with or from any Governmental Authority;
(x) Contracts which are capital leases as determined pursuant to GAAP and involve annual payments by any Seller in excess of $100,000;
(xi) any Contract with a non-solicitation or special pricing arrangement;
(xii) any Contract with the customers and suppliers required to be listed on Schedule 3.18(a) or 3.18(b) of the Disclosure Schedules;
(xiii) any Contract providing for the sale, transfer or other disposition of any material asset or other property owned, leased or held for use by any Seller or its Affiliates, other than Inventory, that but for such Contract, would constitute a Transferred Asset pursuant to this Agreement;
(xiv) Contracts for the employment of any individual on a full-time, part-time or consulting agreements or other basis providing annual compensation (whether in base salary, commission, or otherwise), severance or bonus arrangements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection150,000;
(xv) all currently effective agreements setting forth obligations any Contract with a sole source supplier, pursuant to which such supplier provides to a Seller equipment, materials or services that are necessary for the sale, performance, manufacturing or support of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contractBusiness;
(xvi) all currently effective agreements involving any material agreement relating to any strategic alliance, joint venturedevelopment, joint marketing, partnership, strategic alliance, shareholders’ agreement, joint development venture or similar arrangement;; and
(xvii) all agreements from Contracts that limit or purport to limit in any respect the prior three (3) years involving ability of the Business to compete in any resolution line of business or settlement of with any actual or threatened litigation, arbitration, claim or other dispute which, individually Person or in the aggregate, involve amounts exceeding $250,000 any geographic area or which otherwise provide for during any equitable remedy or subject any LiveArea Company or any period of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000time.
(b) Except as set forth Sellers have made available to Buyers a true, correct and complete copy of each Contract listed on Section 3.08(b) Schedule 3.16 of the Disclosure Schedules: (i) Schedule, as amended to date, and a written summary setting forth the terms and conditions of each oral Material Contract. Each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea CompanySellers and, to the Knowledge of the Sellers, the counterparties thereto, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue is in full force and effect; (ii) . To the Knowledge of Sellers, no Live Area Company is in default or in breach in party has repudiated any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case provision of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of given written notice that a Material Contract without has terminated or will be terminating and, excluding the effect of the filing and administration of the Bankruptcy Case or the insolvency or financial condition of the Sellers, no Seller is in breach of, or default under, in any material respect, a stated termMaterial Contract to which it is a party. A true and complete copy To the Knowledge of the Sellers, the assignment of each written Material Contract (including to Buyers will not result in any amendmentspenalty, modifications premium or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service variation of the LiveArea Businessrights, remedies, benefits or received a claim regarding obligations of any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Businessparty thereunder.
Appears in 1 contract
Material Contracts. (a) Except for Contracts listed in Section 3.08(a3.19(a) of the Disclosure Schedules lists Schedule, neither the Company nor any Subsidiary thereof is a party to or bound by any material Contract described below (each, together with each Contract required to be disclosed on the Disclosure Schedule pursuant to any of the following contracts representations and other agreements of the LiveArea Business (together with all leases listed warranties in Section 3.09(f) of the Disclosure Schedulesthis Article III, collectively, the a “Material ContractsContract”):
(i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contractsany distributor, sales, reseller, advertising, agency, original equipment manufacturer, concession agreement, sales representative, representação comercial, joint marketing, joint development, strategic alliance, partnerships, floor plan arrangements, licensing arrangements (including any convenção de marcas ) or joint venture Contract;
(ii) all agreements each Contract between the Company or any Subsidiary thereof with any customer that relate involves revenues to (A) or expenditures by the sale Company or any Subsidiary thereof in excess of any R$200,000 over the life of the LiveArea Companies’ assetsContract, other than purchase of New Cars, Used Cars or motorcycles in the ordinary course Ordinary Course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregateBusiness;
(iii) all agreements any (A) continuing Contract for the purchase of materials, supplies, equipment or services that relate involves revenues to or expenditures by the acquisition Company or any Subsidiary thereof (excluding utilities and telephone expenses) in excess of R$200,000 over the life of the Contract or (B) any businessContract involving management services, a material amount of stock consulting services, support services or assets of any other Person or any real property (whether by merger, sale similar services in excess of stock, sale R$200,000 over the life of assets or otherwise)the Contract;
(iv) except any trust indenture, guarantees, mortgage, promissory note, sale and leaseback agreements, loan or credit agreement, purchase money obligations or other Contract for agreements the borrowing of money or relating to trade receivablesthe incurrence, all agreements relating to assumption or guarantee of any Indebtedness (including, without limitation, guarantees) or imposing an Encumbrance on any of the LiveArea Companiesassets of the Company or any Subsidiary thereof, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with Brazilian GAAP;
(v) all currently effective agreements between any Contract for the employment of any individual on a full-time, part-time or among a LiveArea Company on the one hand and Parent consulting or any Affiliate other basis providing annual compensation or remuneration (whether through direct payments or dividends) in excess of Parent (other than a LiveArea Company) on the other handR$200,000;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association Contract pursuant to which a LiveArea the Company is a partyor any Subsidiary thereof provides most favored nation or other similar terms with respect to pricing;
(vii) all currently effective employment any agreement of guarantee, support, indemnification, assumption or consulting agreements providing for annual salaries endorsement of, or payments in excess any similar commitment or Contract with respect to, the Liabilities of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Companyother Person;
(viii) all existing Benefit Plansany Contract containing covenants of the Company or any Subsidiary thereof not to compete in any line of business or with any Person in a geographical area or not to solicit or hire any person with respect to employment or covenants of any other Person not to compete with the Company or any Subsidiary thereof in any line of business or in any geographical area or not to solicit or hire any person with respect to employment;
(ix) all currently effective agreements requiring severance payments in excess any Contract relating to the acquisition (by merger, purchase of $100,000 in stock or assets or otherwise) by the aggregate to EmployeesCompany or any Subsidiary thereof of any operating business or material assets or the capital stock of any other Person;
(x) all agreements involving any Contract imposing confidentiality, non-disclosure or relating to an outstanding loan to, similar obligations on the Company or investment in, any PersonSubsidiary thereof;
(xi) all currently effective agreements granting any Contract in accordance with which the Company or evidencing an Encumbrance on any property Subsidiary thereof is a lessor or asset lessee of any LiveArea Companymachinery, equipment, motor vehicles, office furniture, fixtures or other than a Permitted Encumbrance personal property and involving in the case of any such Contract revenues to or Encumbrance that will be released at expenditures by the Company or prior to Closingany Subsidiary thereof in excess of R$500,000 over the life of the Contract;
(xii) all currently effective Real Property Leasesany Contract with any Person with whom the Company or any Subsidiary thereof does not deal at arms’ length;
(xiii) all currently effective agreements that provide any Contract relating to the sale of assets of the Company or any Subsidiary thereof or for exclusive dealings between the parties thereto or which purport grant of any Person of any preferential rights to restrict or limit purchase any LiveArea Company from (A) engaging of its assets other than in any line the Ordinary Course of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clientsBusiness of the Company;
(xiv) all currently effective customer agreements granting any Contract under which the entering into of this Agreement or providing the consummation of the Transactions would give rise to, or trigger the application of, any “most favored nation” rights of any third party or best price protectionany obligations of the Company or any Subsidiary thereof that would come into effect upon the consummation of the Transactions;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company Contract relating to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual administrative or threatened litigation, arbitration, claim or other dispute whichjudicial proceedings involving amounts, individually or in the aggregate, involve amounts exceeding $250,000 or in excess of R$200,000 within the past three (3) years;
(xvi) any Contract which otherwise provide for any equitable remedy or subject any LiveArea is onerous (i.e., cannot readily be performed by the Company or any Subsidiary thereof on time or without undue or unusual expenditure of its properties money, effort or assets personnel) or loss making;
(xvii) any Contract which is likely to any Encumbrances; andinvolve in aggregate sales values which will represent in excess of ten percent (10%) of turnover for the preceding financial year of the Company;
(xviii) all currently effective agreements to which any LiveArea Company is outstanding offer, proposal, estimate or quotation which, if accepted or incorporated into a party or by which Contract would result in a Contract which, if now in existence, would fall within any of sub-paragraphs (i) to (xvii) above; or
(xix) any Contract that the Shareholders reasonably believe to be material to the Company and its assets or business is bound that involve amounts exceeding $500,000Subsidiaries.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (Contract, including any amendments, all amendments and modifications or renewals and side agreements relating thereto, but excluding statements of work) has been made available delivered to Buyersthe Purchaser’s legal counsel. The LiveArea Business All Material Contracts are in executed written form. Each of the Material Contracts is a valid and binding agreement of the Company or its applicable Subsidiary and, to the Knowledge of the Shareholders, the other parties thereto. Except as set forth in Section 3.4 (b) of the Disclosure Schedule, (i) neither the Company nor any Subsidiary thereof has not incurred violated or breached, or committed any material liability default under, any Material Contract, which remains uncured, and, to the Knowledge of the Shareholders, no other Person has violated or breached, or committed any default under, any Material Contract which remains uncured; (ii) no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will or could reasonably be expected to: (A) result in a violation (other than immaterial or nonmonetary violations) or breach of any provision of any Material Contract; (B) give any counterparty to a Material Contract the right to declare a default or exercise any remedy under any Material Contract; (C) give any counterparty to a Material Contract arising from the right to accelerate the maturity or performance of any Material Contract; or (D) give any counterparty to a breach Material Contract the right to cancel, terminate or modify any Material Contract other than in accordance with its terms; and (iii) neither the Company nor any Subsidiary thereof has waived any of an express its rights under any Material Contract. Immediately following the Closing Date, the Company or implied warranty regarding a product its applicable Subsidiary will maintain its rights under the Material Contracts without the payment of any additional amounts of consideration other than ongoing fees, royalties or service payments that the Company or its applicable Subsidiary would otherwise be required to pay in accordance with the terms of such Material Contracts had the LiveArea Business, Transactions not occurred.
(c) The Company and its Subsidiaries have paid all their creditors within the credit periods normally applied by the Company and its Subsidiaries to such creditors and no debt owing by the Company or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessSubsidiary thereof has been due for more than twelve (12) weeks.
Appears in 1 contract
Material Contracts. (a) Section 3.08(aSchedule 4.17(a) sets forth a true, correct and complete list of all Contracts, including all amendments, modifications and supplements thereto, to which Seller is a party relating to the Business or by which Seller (relating to the Business) or any of the Disclosure Schedules lists each Acquired Assets is bound, meeting any of the following contracts and other agreements of the LiveArea Business descriptions set forth below (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, collectively referred to herein as the “Material Contracts”):
(i) each agreement all Contracts or groups of a LiveArea Company involving aggregate consideration in excess related Contracts with any Material Supplier or any other vendor or supplier of the Business who received payments from Seller exceeding $500,000 100,000 during FY 2020 and the current calendar year and all shared customer contractstwelve-month period ended December 31, 2024;
(ii) all agreements that relate to (A) the sale Contracts or groups of related Contracts with any Material Customer or any other customer or client of the LiveArea Companies’ assetsBusiness that involved individual or aggregate payments or consideration of more than $100,000 during the twelve-month period ended December 31, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate2024;
(iii) all agreements that relate to the acquisition of Contracts under which Seller would incur any business, a material amount of stock or assets of any other Person or any real property (whether by mergerchange-in-control, sale bonus or retention payments or similar compensation obligations to its employees by reason of stockthis Agreement, sale of assets any Ancillary Agreement or otherwise)the Contemplated Transactions;
(iv) except for agreements relating to trade receivablesall joint venture, all agreements relating to Indebtedness (includinglimited liability, without limitation, guarantees) of the LiveArea Companiespartnership or similar Contracts;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or Contracts with respect to any Affiliate of Parent (other than a LiveArea Company) on the other handTransactions;
(vi) all currently effective collective bargaining agreements Contracts which purport to limit or agreements restrict the ability of the Business to enter into or engage in any market or line of business anywhere in the world or that provides for “most favored nations” terms, minimum commitments, “take-or-pay” or similar rights or obligations, or establishes an exclusive sale, distribution, supply or purchase obligation with respect to any labor organizationproduct, union service or association to which a LiveArea Company is a partyany geographic location;
(vii) all currently effective employment or consulting agreements providing Contracts for annual salaries or payments in excess of $350,000, including target level awards capital expenditures under the Parent’s short term and long term incentive plans but excluding commissions and which there are any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Companyremaining outstanding obligations;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements Contracts entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigationAction;
(ix) any Contract under which the Business has continuing material indemnification obligations to any Person, arbitration, claim or other dispute which, individually or than those entered into in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for ordinary course of business consistent with past practice;
(x) any equitable remedy or subject any LiveArea Company collective bargaining agreement or any of its properties other Contract with any labor union or assets association relating to any Encumbrancescurrent or former employee of the Business;
(xi) all employment Contracts and any Contracts with employees of the Business containing severance, retention, separation noncompetition or proprietary rights provisions;
(xii) all Contracts or arrangements providing service providers to the Business with equity interests or equity-based compensation from Seller (including options, profits interests, carry arrangements, profit-sharing and phantom equity arrangements);
(xiii) all licenses and agreements pursuant to which the Business uses Intellectual Property in the operation of the Business (other than off-the-shelf commercially-available computer software on standard terms);
(xiv) any Contract under which the Business has made advances or loans to any other Person (other than trade credit in the ordinary course of business consistent with past practice);
(xv) all Contracts with any Governmental Authority;
(xvi) all Contracts concerning Clinical Research;
(xvii) all Contracts (or group of related Contracts) under which the Business has created, incurred, assumed or guaranteed any Indebtedness or permitted any Lien (other than Permitted Liens) to be granted with respect to the Acquired Assets; and
(xviii) all currently effective agreements any other Contract (or group of related Contracts) which is otherwise material to which any LiveArea Company the Business that is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000not terminable with less than sixty (60) days’ notice.
(b) Except as set forth on Section 3.08(b) Seller has made available to Buyer true, correct and complete copies of the Disclosure Schedules: (i) each all Material Contracts. Each Material Contract is a valid and binding on obligation of Seller, is in full force and effect and is enforceable against Seller and against the LiveArea Company party other parties thereto (except, in each case, as enforceability may be limited by the Bankruptcy and enforceable in accordance with its terms against such LiveArea CompanyEquity Exceptions). Neither Seller nor, and to Sellers’ Knowledgethe Knowledge of Seller, each any other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect ofbreach, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect violation of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements event has occurred that, with notice or lapse of work) has provided written notice to the LiveArea Pre-Reorg Parties time or any LiveArea Company an intention to terminate both, would constitute such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term material breach or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications violation or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability default by Seller under any Material Contract arising from a breach or, to the Knowledge of an express or implied warranty regarding a product or service of Seller, the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Businessother parties thereto.
Appears in 1 contract
Sources: Asset Purchase Agreement (Richardson Electronics, Ltd.)
Material Contracts. Except as listed or described on Schedule 4.8 or any other Schedule (the "Material Contracts"), as of or on the date hereof the Acquired Companies are not party to any Applicable Contract that is of a type described below:
(a) Section 3.08(a) of the Disclosure Schedules lists each of the following contracts and other any collective bargaining arrangement with any labor union or any such agreements of the LiveArea Business (together with all leases listed currently in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):negotiation or proposed;
(ib) each agreement any contract for capital expenditures or the acquisition or construction of a LiveArea Company involving aggregate consideration fixed assets for or in respect to real property other than in the Ordinary Course of Business in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts50,000;
(iic) any contract with a term in excess of one year for the purchase, maintenance, acquisition, sale or furnishing of materials, supplies, merchandise, machinery, equipment, parts or other property or services (except that the Acquired Companies need not list any such contract made in the Ordinary Course of Business which requires aggregate future payments of less than $250,000, and in lieu of providing each individual contract, the Acquired Companies has provided to Fortress its standard subcontractor form and a list of each subcontractor).
(d) any contract relating to the borrowing of money, or the guaranty of another person's borrowing of money, including, without limitation, all notes, mortgages, indentures and other obligations, agreements that relate and other instruments for or relating to any lending or borrowing, including assumed indebtedness;
(Ae) the sale of any contract granting any person an Encumbrance on any of the LiveArea assets of the Acquired Companies’ assets, in whole or in part, other than an Encumbrance arising in the Ordinary Course of Business as a result of the Acquired Companies entering into an agreement to sell a home to a potential buyer;
(f) any contract for the cleanup, abatement or other actions in connection with Hazardous Materials (as defined in Section 4.18), the remediation of any existing environmental liabilities or relating to the performance of any environmental audit or study, other than those arising in the Ordinary Course of Business;
(g) any contract granting to any person a first-refusal, first-offer or similar preferential right to purchase or acquire any material asset of the operations of the Acquired Companies, other than in the ordinary course Ordinary Course of business Business;
(h) any contract under which an Acquired Company is -
(i) a lessee or sublessee of any machinery, equipment, vehicle or other tangible personal property or real property, or
(Bii) capital expenditures a lessor of any real property or development costs or expensestangible personal property owned by an Acquired Company, for consideration in either case having an original value in excess of $500,000 in the aggregate50,000;
(iiii) all agreements that relate to any contract providing for the acquisition indemnification of any businessofficer, a material amount director, employee or other person where such indemnification may exceed the sum of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise)$50,000;
(ivj) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development venture or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets partnership contract. The Acquired Companies have made available to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is Fortress a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract, including all amendments or other modifications thereto. Except as set forth on Schedule 4.8, each Material Contract is a valid and binding obligation of the respective Acquired Company enforceable in accordance with its terms, and is in full force and effect, subject to bankruptcy, reorganization, receivership and other laws affecting creditors' rights generally and the application of equitable principles. Except as set forth on Schedule 4.8, the respective Acquired Company has performed all obligations required to be performed by it under each Material Contract and it is not, nor, to the Knowledge of the Acquired Companies, is any other party to any Material Contract (including with or without the lapse of time or the giving of notice, or both) in breach or default in any amendmentsmaterial respect thereunder; and there exists no condition which, modifications to the Knowledge of the Acquired Companies, would constitute a breach or renewals relating thereto, but excluding statements of work) has been made available to Buyersdefault thereunder. The LiveArea Business has Acquired Companies have not incurred been notified that any material liability party to a Material Contract intends to cancel, terminate, not renew, or exercise an option under any Material Contract arising from a breach of an express Contract, whether in connection with the transactions contemplated hereby or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Businessotherwise.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a) As of the Disclosure Schedules lists each date of this Agreement none of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):Purchased Subsidiaries are party to or bound by:
(i) each agreement any lease (whether of a LiveArea Company involving aggregate consideration in excess real or personal property) requiring (A) annual rentals of $500,000 during FY 2020 and or more or (B) aggregate payments by the current calendar year and all shared customer contractsPurchased Subsidiaries of $5,000,000 or more, in each case, that cannot be terminated on not more than 180 days’ notice without payment by the Purchased Subsidiaries of any material penalty;
(ii) all agreements that relate to any agreement (excluding statements of work and purchase orders) for the purchase of materials, supplies, goods, services, equipment or other tangible assets requiring either (A) annual payments by the Purchased Subsidiaries of $5,000,000 or more or (B) aggregate payments by the Purchased Subsidiaries of $15,000,000 or more (assuming no renewal or extension, whether pursuant to an “evergreen” provision or otherwise), in each case, that cannot be terminated on not more than 30 days’ notice without payment by the Purchased Subsidiaries of any material penalty;
(iii) any agreement (excluding statements of work, customer templates, customer system generated orders and purchase orders) for the sale of any services or products which involved the payment to any Purchased Subsidiary of more than $5,000,000 in the LiveArea Companies’ assetsfiscal year ended May 31, 2015 or is reasonably expected to involve the payment to any Purchased Subsidiary of more than $5,000,000 in the fiscal year ending May 31, 2016 (assuming no renewal or extension, whether pursuant to an “evergreen” provision or otherwise);
(iv) any agreement under which a Purchased Subsidiary has, directly or indirectly, made any (A) advance, loan or extension of credit to any Person (other than a Purchased Subsidiary), in each case other than in the ordinary course of business business, or (B) capital expenditures contribution to, or development costs or expensesinvestment in, for consideration any Person (other than in any other Purchased Subsidiary) in excess of $500,000 in the aggregate500,000;
(iiiv) all any agreements that relate relating to the acquisition incurrence, assumption or guarantee of any businessIndebtedness for borrowed money with outstanding principal amount in excess of $500,000;
(vi) any individual agreement for capital expenditures involving payments of more than $500,000 individually or in the aggregate after the date hereof;
(vii) any material partnership, joint venture or other similar agreement or arrangement;
(viii) any agreement that limits the freedom of the Purchased Subsidiaries to compete in any line of business or with any Person or in any geographic area and which would so limit the freedom of the Purchased Subsidiaries after the Closing Date;
(ix) any material agreement between the Purchased Subsidiaries, on the one hand, and Seller or any Retained Subsidiary, on the other hand, in each case involving amounts in excess of $500,000;
(x) any agreement pursuant to which a material amount of stock Purchased Subsidiary has acquired or assets disposed of any other Person or any real property material business (whether by merger, sale of stock, sale of assets or otherwise) entered into during the five-year period immediately preceding the date hereof, in each case involving amounts in excess of $1,000,000;
(xi) any agreement or covenant not to ▇▇▇ relating to the development, ownership, use or enforcement of any material Intellectual Property Rights (excluding non-exclusive licenses granted to customers in the ordinary course of business and commercially available off-the-shelf Software having a replacement cost of less than $500,000);
(ivxii) except for agreements any material agreement relating to trade receivablesthe IT Assets, all agreements relating to Indebtedness (includingincluding any material agreement for telecommunication services, without limitationdata center services, guarantees) disaster recovery services, or other similar services, in each case, that provides for the payment of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organizationcompensation, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries fees or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged 500,000 in the provision of temporary workers to a LiveArea Company2015 calendar year;
(viiixiii) all existing Benefit Plansany employment agreements, change of control agreements, retention agreements or severance agreements (exclusive of generally applicable severance policy) with any Key Employee;
(ixxiv) all currently effective any agreements requiring severance with any individual consultant or independent contractor that provide services to the Business that provide for the payment to such Person of compensation, fees or payments in excess of $100,000 250,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection2015 calendar year;
(xv) all currently effective any agreements setting forth obligations relating to any staffing companies, temporary employment agencies, or similar companies that provide services to the Business that provide for the payment of any LiveArea Company to indemnify any third partycompensation, other than customer, vendor, licensing and other agreements entered into fees or payments in excess of $500,000 in the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;2015 calendar year; and
(xvi) all currently effective any non-competition, non-solicitation and confidentiality agreements involving with any joint ventureBusiness Employee whose current base salary exceeds $250,000 in the 2015 calendar year (other than agreements that are substantially similar to the Purchased Subsidiaries’ form of non-competition, partnership, strategic alliance, shareholders’ non-solicitation and confidentiality agreement).
(b) Each agreement, joint development contract, lease, arrangement or similar arrangement;
commitment required to be disclosed pursuant to Section 3.10(a) (xviieach, a “Material Contract”) all agreements from is a valid and binding agreement of the prior three (3) years involving Purchased Subsidiary party thereto and is in full force and effect, and none of such Purchased Subsidiary or, to the knowledge of the Seller as of the date hereof, any resolution other party thereto is in default or settlement breach under the terms of any actual or threatened litigationsuch Material Contract, arbitrationexcept in each case, claim or other dispute whichas, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets would not reasonably be expected to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of have a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessAdverse Effect.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a) The Company has made available to the Purchaser a true and complete copy of the Disclosure Schedules lists each any of the following contracts and other agreements Contracts, including any amendments thereto, to which any Seller nor any of the LiveArea Business Acquired Entities is a party to or bound (together with all leases listed in Section 3.09(f) of the Disclosure Scheduleseach, collectively, the a “Material ContractsContract”):
(i) Collective Bargaining Agreements;
(ii) Contract for the employment of any officer, individual employee or other natural person on a full-time, part-time or consulting basis providing for a base salary in excess of two hundred fifty thousand dollars ($250,000) per annum;
(iii) Contracts providing for severance, retention, change in control, transaction bonus or similar payments;
(iv) Contracts relating to (A) Indebtedness involving any Liability, individually or in the aggregate, in excess of $200,000, (B) guaranties of any obligation for Indebtedness or (C) mortgaging, pledging or otherwise placing a Lien (other than a Permitted Exception) on any portion of the assets of Sellers or Acquired Entities;
(v) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $200,000;
(vi) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds $200,000;
(vii) other than purchase orders entered into in the Ordinary Course of Business, any Contracts with the ten (10) largest vendors and suppliers (measured by fees paid or payable) of the Acquired Entities and Sellers for the twelve (12) month period ended June 30, 2020 (the “Material Suppliers”) and the ten (10) largest customers (measured by revenue) of the Acquired Entities and Sellers for the twelve (12) month period ended June 30, 2020 (the “Material Customers”);
(viii) material Contracts pursuant to which any of Sellers or Acquired Entities grants to a third-party, or a third-party grants to any of Sellers or Acquired Entities, a license to any material Intellectual Property, in each agreement of a LiveArea Company case involving aggregate consideration in excess of $500,000 during FY 2020 and 200,000 per annum, other than Contracts for the current calendar year and all shared customer contractslicense of commercially available, off-the-shelf software on standard non-negotiable terms;
(iiix) all agreements Contract that relate limits in any material respect the freedom of any Seller or Acquired Entity to compete in any line of business or geographic region, or with any Person, including any Contract that requires Sellers or Acquired Entities to work exclusively with any Person in any geographic region, excluding, in any such case, any limitations or restrictions on the ability to solicit any individual or class of individuals of the counterparty to any such Contract (and/or any of its Affiliates) for employment and limitations or restrictions on keeping confidential and not using another Person’s confidential information;
(x) Contract not otherwise described in any other subsection of this Section 5.5(a) that (A) the sale of any of the LiveArea Companies’ assets, other than in the ordinary course of business or (B) is reasonably expected to involve future capital expenditures or development costs or expenses, for consideration in excess by any Acquired Entity of more than $500,000 in the aggregateone-year period following the Effective Date, other than ordinary course purchase orders and (B) cannot be terminated by the Acquired Entities on less than ninety (90) days’ notice without material payment or penalty;
(iiixi) all agreements that relate Contracts relating to the acquisition of any business, a material amount of stock or assets of any other Person or any real property disposition (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of any Person or material line of business entered into during the LiveArea Companies;
past three (v3) all currently effective agreements between years or among a LiveArea Company on the one hand and Parent future acquisition or any Affiliate disposition (whether by merger, sale of Parent (other than a LiveArea Companystock, sale of assets or otherwise) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance Person or Encumbrance that will be released at or prior to Closingmaterial line of business;
(xii) all currently effective Real Property Leasesjoint venture agreements, partnership agreements, limited liability company agreements and each similar type of Contract involving a sharing of profits, losses, costs or liabilities with any other Person;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing Contracts with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clientsGovernmental Body;
(xiv) all currently effective customer agreements Contracts granting to any Person a first refusal, first offer or providing similar preferential right to purchase or acquire any “most favored nation” rights material right, asset or best price protectionproperty of any Acquired Entity;
(xv) all currently effective agreements setting forth obligations Contracts with any Affiliate or current or former officer or director of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements Seller or Acquired Entity or otherwise entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contracton an arms’ length basis;
(xvi) all currently effective agreements involving any Contracts that are joint venture, partnership, strategic alliance, shareholders’ agreementco-marketing, co-promotion, co-packaging, joint development or other similar arrangement;Contracts involving (A) any joint conduct or sharing of any business, venture or enterprise, (B) a sharing of profits or losses or (C) pursuant to which any Seller or Acquired Entity has any ownership interest in any other Person or business enterprise other than the Acquired Entities; or
(xvii) all agreements from Contracts that are otherwise material to the prior three (3) years involving any resolution business, properties, assets or settlement Liabilities of any actual Seller, Acquired Entity or threatened litigationthe Business.
(b) Subject to requisite Bankruptcy Court approvals, arbitration, claim and assumption by the applicable Seller of the applicable Contract in accordance with applicable Law (including satisfaction of any applicable Cure Costs by Purchaser in accordance with the terms of this Agreement) and except as a result of the commencement of the Bankruptcy Case or other dispute whichwould not be, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any material to the Business, as a whole, each of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company the Material Contracts is in full force and effect and is a party or valid, binding and enforceable obligation of Sellers and Acquired Entities and, to the Knowledge of Sellers, each of the other parties thereto, except as may be limited by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) the Enforceability Exceptions. Except as set forth on in Section 3.08(b5.5(b) of the Company Disclosure Schedules: (i) each Material Contract is valid and binding on Letter, as a result of the LiveArea Company party thereto and enforceable commencement of the Bankruptcy Case or would not be, individually or in accordance with its terms against such LiveArea Companythe aggregate, and to Sellers’ Knowledge, each other party thereto, subject material to the Bankruptcy ExceptionBusiness, and immediately following the consummation of the transactions contemplated herebyas a whole, shall continue in full force and effect; (ii) no Live Area Company neither any Seller nor any Acquired Entity, as applicable, is in default material default, or is alleged in breach in any material respect of, or, writing by the counterparty thereto to Sellers’ Knowledge, alleged have materially breached or to be in breach in any material respect ofdefault, under any Material Contract; (iii) , and, to the Knowledge of Sellers’ Knowledge, each the other party to each Material Contract has performed all obligations Contracts is not in all material respects required default thereunder. Neither any Seller or Acquired Entity nor, to be performed by it under the Knowledge of Sellers, any other party to such Material Contract and is not in default or in breach in has exercised any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company termination rights or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a the other party, indicated to such Seller or Acquired Entity in writing, or to the Knowledge of Sellers orally, such party’s intent to terminate such Material Contract with a stated term or (y) within one year following the Closing DateContract, in each case other than termination at the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service end of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessMaterial Contract’s term in accordance with its terms.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Shiloh Industries Inc)
Material Contracts. (a) Section 3.08(aSchedule 3.14(a) lists each Contract described below (excluding purchase orders, invoices or similar documentation entered into in the ordinary course of business and any Plans listed on Schedule 3.17(a)) to which any Acquired Entity is a party as of the Disclosure Schedules lists each date hereof (such Contracts responsive to any of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectivelysubsections, the “Material Contracts”):
(i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and Contract with the current calendar year and all shared customer contracts(A) Significant Customers or (B) Significant Vendors;
(ii) all agreements that relate Contract relating to Indebtedness;
(iii) Real Property Leases;
(iv) Contract under which an Acquired Entity is a licensee of or is otherwise granted by a third party any rights to use any Intellectual Property (other than (A) non-exclusive licenses of (or agreements to provide Software on a nonexclusive, hosted basis) commercially-available Software for a cost of less than $100,000 during the sale of twelve (12) months ended March 31, 2025, or (B) Incidental Licenses);
(v) Contract under which an Acquired Entity is a licensor of, or otherwise grants to a third party any of the LiveArea Companies’ assetsrights to use, any Owned IP (other than (A) any Contract with a customer for Proprietary Software licensed or provided on a non-exclusive basis in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregateIncidental Licenses);
(iiivi) all agreements Contract that relate to is a joint venture, cooperative, franchise, consortium or partnership agreement providing for the acquisition sharing of any business, a material amount of stock profits or assets losses;
(vii) collective bargaining agreement or other Contract with any Union;
(viii) Contract involving the settlement or compromise of any other Person Action with obligations that remain outstanding as of the date of this Agreement;
(ix) Contract related to any disposition, divestiture or any real property acquisition (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organizationbusiness by an Acquired Entity, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing in each case, for annual salaries or payments aggregate consideration in excess of $350,0001,000,000 that was entered into since January 1, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and 2022, or pursuant to which any amounts payable to Employees by Parent earn-out or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm other deferred or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employeescontingent payment obligations remain outstanding;
(x) all agreements involving any Contract for capital expenditures by any Acquired Entity in excess of $250,000;
(xi) any Contract that prohibits, restricts or relating limits (A) the geographies or businesses in which any Acquired Entity may operate its business, (B) the ability of any Acquired Entity to an outstanding loan toengage in business with any customer, vendor or other third party, or investment in, (C) any Acquired Entity’s ability to compete with any Person anywhere in the world and during any period of time;
(xii) any Contract pursuant to which an Acquired Entity has granted “most favored nation” or similar preferential pricing or terms to any Person;
(xixiii) all currently effective agreements granting or evidencing an Encumbrance any Contract containing any exclusivity requirements binding on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clientsAcquired Entity;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protectionContract that has any offshore limitations binding on any Acquired Entity;
(xv) all currently effective agreements setting forth obligations any Contract relating to mortgaging, pledging or otherwise placing or granting a Lien (other than a Permitted Lien) on any portion of the assets of any LiveArea Company Acquired Entity or any Contract related to indemnify the guaranty of any obligation for borrowed money of any third party or other material guaranty of any obligation of a third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint ventureContract providing for the employment or consultancy of any individual on a full-time, partnershippart-time, strategic allianceconsulting or other basis, shareholdersthe performance of which mandates payment of base cash compensation (for the avoidance of doubt, not to include any bonuses or benefits (including issuances or grants of Equity Interests) made by any Acquired Entity or its Affiliates as it relates to the Business Employees to or for the benefit of such Person) in excess of $150,000 annually (other than at-will employment contracts that may be immediately terminable by the applicable Acquired Entity or its Affiliates at it relates to the Business Employees without severance or consulting contracts that may be terminable by the applicable Acquired Entity on not more than sixty (60) days’ agreement, joint development or similar arrangementnotice);
(xvii) all agreements from the prior three Assigned Contracts (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or as defined in the aggregateContribution Agreement), involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrancesother than the Continuing Employee Agreements (as defined in the Contribution Agreement); andor
(xviii) all currently effective agreements to which any LiveArea Company Contract or group of related Contracts with the same party that (A) is not a party Contract between an Acquired Entity and a customer of such Acquired Entity, (B) involved expenditure, payment or receipt of consideration by which any the Acquired Entities in excess of its assets $250,000 during the twelve (12) months ended March 31, 2025, and (C) is not terminable by such Acquired Entity without penalty on notice of thirty (30) days or business is bound that involve amounts exceeding $500,000less.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) Schedule 3.14(b), each Material Contract is in full force and effect, is the legal, valid and binding on obligation of the LiveArea Company party thereto applicable Acquired Entity, and is enforceable in accordance with its terms against such LiveArea Companythe applicable Acquired Entity and, and to Sellers’ Knowledgethe Knowledge of the Seller Parties, each other party thereto, subject to the Bankruptcy ExceptionEnforceability Exceptions. Except as set forth on Schedule 3.14(b), and immediately following the consummation (i) each of the transactions contemplated hereby, shall continue Acquired Entities is currently in full force material compliance with and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed and materially complied with all of its obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such each Material Contract; and (ivii) no event has occurred which, with none of the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company Acquired Entities or, to Sellers’ Knowledgethe Knowledge of the Seller Parties, by any other party thereto thereto, is in violation or breach of or default under, any Material Contract or has, in the past twelve (other than 12) months, received written or, to the Knowledge of the Seller Parties, oral notice of any LiveArea Company) under actual or alleged violation of or default under, or the cancellation, termination, adverse modification or acceleration of any Material Contract. No counterparty Acquired Entity has received written notice of any plan or intention of any other party to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg exercise any right to cancel or terminate any Material Contract. The Seller Parties or any LiveArea Company an intention have made available to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A Buyer true and complete copy copies of each written Material Contract and provided summaries of any oral Material Contract. With respect to any Contract of the Acquired Entities (including other than the Material Contracts) that is included in the Data Room as set forth on Schedule 3.14-2 ("Data Room Contracts"), none of the Acquired Entities or, to the Knowledge of the Seller Parties, any amendments, modifications or renewals relating other party thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a is in violation or breach of an express or implied warranty regarding a product default under, any such Data Room Contract or service has received written or, to the Knowledge of the LiveArea BusinessSeller Parties, oral notice of any actual or alleged violation of or default under, or received a claim regarding the cancellation, termination, adverse modification or acceleration of any such liability based upon alleged Data Room Contract, in each case, that has had or would reasonably be expected to have a Business Material Adverse Effect. With respect to any Contract of the Acquired Entities (other than the Material Contracts) that is not included in the Data Room ("Non-Data Room Contracts"), none of the Acquired Entities or, to the Knowledge of the Seller Parties, any other party thereto, is in violation or breach of an express or implied warranty regarding default under, any such Non-Data Room Contract, and the Acquired Entities have not, during the past twenty-four (24) months, received written notice of any actual or alleged violation of or default under, or the cancellation, termination, adverse modification or acceleration of any such Non-Data Room Contract, in each case, that has had or would reasonably be expected to have a product or service of the LiveArea BusinessBusiness Material Adverse Effect.
Appears in 1 contract
Material Contracts. (a) All Contracts, including amendments thereto, required to be filed as an exhibit to any report of Parent filed pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K under the Exchange Act have been so filed as of the date hereof, and no such Contract has been amended or modified (or further amended or modified, as applicable) since the date such Contract or amendment was filed.
(b) Other than the Contracts described in clause (a) above which were filed in an unredacted form, Section 3.08(a4.11(b) of the Parent Disclosure Schedules lists each Schedule sets forth a complete and accurate list of Contracts to which Parent or any of its Subsidiaries is a party that fall within the following categories and existing as of the following contracts and other agreements of the LiveArea Business date hereof (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Parent Material Contracts”):
(i) each agreement any Contract for the purchase or sale of a LiveArea Company involving aggregate consideration in excess services, equipment or other assets (other than relating to Oil and Gas Properties) that either (1) provides for annual payments by Parent and/or its Subsidiaries of $500,000 during FY 2020 and 1,000,000 or more; or (2) gives rise to anticipated receipts of more than $1,000,000 in any calendar year, in each case that cannot be terminated on not more than 90 days’ notice without payment by the current calendar year and all shared customer contractsParent and/or its Subsidiaries of any material penalty;
(ii) all agreements that relate to (A) the sale of any of the LiveArea Companies’ assetsmaterial partnership, joint venture or other than in the ordinary course of business similar agreement or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregatearrangement;
(iii) all agreements that relate any Contract relating to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property business (whether by merger, sale of stock, sale of assets or otherwise)) pursuant to which Parent has material ongoing obligations entered into within the three years prior to the date hereof;
(iv) except for agreements relating to trade receivables, all agreements any Contract as obligor or guarantor relating to Indebtedness (includingin either case, without limitationwhether incurred, guarantees) of the LiveArea Companiesassumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $1,000,000;
(v) all currently effective agreements between any Contract containing any area of mutual interest, joint bidding area, joint acquisition area, or among a LiveArea Company on non-compete or similar type of provision that materially restricts the one hand and ability of Parent or any Affiliate of Parent Parent’s Subsidiaries (other than a LiveArea including the Company and the Company’s Subsidiaries following the Closing) on to (A) compete in any line of business or geographic area or with any Person during any period of time after the other handClosing or (B) make, sell or distribute any products or services, or use, transfer or distribute, or enforce any of their rights with respect to, any of their material assets or properties;
(vi) any Contract to sell, lease, farmout, exchange or otherwise dispose of all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a partypart of the Oil and Gas Properties of Parent and its Subsidiaries;
(vii) all currently effective employment each Contract for the sale, purchase, exchange or consulting agreements providing for annual salaries other disposition of Hydrocarbons produced from the Oil and Gas Leases or payments in excess ▇▇▇▇▇ of $350,000, including target level awards under the Parent’s short term Parent and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Companyits Subsidiaries;
(viii) all existing Benefit Planseach Contract that contains any drilling commitments;
(ix) all currently effective agreements requiring severance payments in excess each Contract for any material Derivative Transaction of $100,000 in the aggregate to EmployeesParent or any of its Subsidiaries;
(x) all any joint development agreement, exploration agreement, participation, farmout, farm in or program agreement or similar Contract (or series of related Contracts) requiring Parent or any Subsidiary to make expenditures that would reasonably be expected to be in excess of (A) $1,500,000 in any calendar year or (B) $3,000,000 during the term thereof, other than customary joint operating agreements involving or relating to an outstanding loan to, or investment in, any Personand continuous development obligations under Oil and Gas Leases;
(xi) all currently effective agreements granting any Contract that provides for a “take-or-pay” clause or evidencing an Encumbrance any similar prepayment obligation, acreage dedication, minimum volume commitments or capacity reservation fees to a gathering, transportation or other arrangement downstream of the wellhead, that cover, guaranty or commit volumes in excess of 5,000 barrels of oil equivalent of Hydrocarbons of Parent and its Subsidiaries per day over a period of one month (calculated on a yearly average basis) and for a term greater than 10 years, except for any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance Contracts that will be released at or prior to Closingare terminable without penalty within 90 days;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements each Contract that provide for exclusive dealings between the parties thereto or which purport to restrict or limit contains any LiveArea Company from (A) engaging in any line of businessstandstill, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” or most favored customer provision, preferential right or rights of first or best price protection;
(xv) all currently effective agreements setting forth obligations last offer, negotiation or refusal or any similar requirement or right in favor of any LiveArea Company to indemnify any third party, in each case other than customerthose contained in (A) any agreement in which such provision is solely for the benefit of the Company or any of its Subsidiaries, vendor, licensing (B) customary royalty pricing provisions in Oil and other Gas Leases or (C) customary preferential rights in joint operating agreements entered into or unit agreements affecting the ordinary course business or the Oil and Gas Properties of business consistent with past practice where such indemnification obligations are not the primary purpose Company or any of such contract;its Subsidiaries; and
(xvixiii) all currently effective agreements involving any joint ventureContract that constitutes a seismic, partnershipdata or geophysical license, strategic alliance, shareholders’ agreement, joint development agreement or similar arrangement;permit.
(xviic) all agreements from Each Parent Material Contract is a valid and binding agreement of Parent or one of its Subsidiaries, and is in full force and effect, and none of Parent, any Subsidiary of Parent or, to Parent’s knowledge, any other party is in default or breach under the prior three (3) years involving any resolution or settlement terms of any actual such Parent Material Contract, except for any such defaults or threatened litigation, arbitration, claim or other dispute whichbreaches which would not reasonably be expected to have, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000Parent Material Adverse Effect.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
Appears in 1 contract
Sources: Merger Agreement (Talos Energy Inc.)
Material Contracts. (a) Section 3.08(a3.15(a) of the Company Disclosure Schedules Schedule lists each of the following contracts and other agreements of Holdings or the LiveArea Business Company or any Subsidiary, as applicable (such contracts and agreements, together with all contracts, agreements, leases and subleases concerning the use, occupancy, management or operation of any Leased Real Property including, without limitation, all contracts, agreements, leases and subleases listed or otherwise set forth in Section 3.09(f3.17(c) of the Company Disclosure SchedulesSchedule (including Ancillary Lease Documents), collectivelyall IP Agreements listed or otherwise set forth in Section 3.16(a) of the Company Disclosure Schedule, and all contracts, agreements, leases and subleases relating to Tangible Personal Property listed or otherwise set forth in Section 3.18(b) of the Company Disclosure Schedule, being “Material Contracts”):
(i) Other than those contracts and agreements specified in clause (v) below, each agreement contract, agreement, invoice, sales order and other arrangements, for the furnishing of goods or services by Holdings, the Company or a LiveArea Subsidiary (other than relating to insurance coverage) or for the furnishing of goods or services to Holdings, the Company involving or a Subsidiary which: (A) involved consideration equal to or more than $200,000 in the twelve months prior to the date of this Agreement or (B) is likely to involve consideration of more than $200,000 in the aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contractsending December 31, 2013 or, to the Knowledge of Holdings or the Knowledge of the Company, in any twelve (12) month period thereafter;
(ii) all contracts and agreements that relate to (A) the sale of any of the LiveArea Companies’ assets, other than relating to insurance customers, brokers or carriers) involving consideration equal to or more than $25,000 in the ordinary course twelve months prior to the date of business or (B) capital expenditures or development costs or expenses, for consideration this Agreement that have a remaining term in excess of $500,000 in twelve (12) months and that cannot be cancelled or terminated by Holdings, the aggregateCompany or a Subsidiary without cause by providing the counterparty with no more than ninety (90) days advance notice of termination;
(iii) all distributor, dealer, franchise, sales promotion, market research, marketing and advertising contracts and agreements that relate to which Holdings or the Company or any Subsidiary is a party which: (A) involved consideration equal to or more than $25,000 in the twelve months prior to the acquisition date of this Agreement or (B) is likely to involve payment of more than $15,000 in the aggregate during the calendar year ending December 31, 2013 or, to the Knowledge of Holdings or, to the Knowledge of the Company, in any business, a material amount of stock or assets of any other Person or any real property twelve (whether by merger, sale of stock, sale of assets or otherwise)12) month period thereafter;
(iv) except all employment contracts or agreements, management contracts and contracts with independent contractors or consultants (or similar arrangements, but excluding arrangements with co-brokers and sub-brokers not employed by Holdings, the Company or any Subsidiary) to which Holdings, the Company or any Subsidiary is a party, and which (i) provide for agreements relating to trade receivablesannual compensation in excess of $100,000, or (ii) are not cancellable without penalty or further payment in excess of $50,000;
(v) all agreements relating to Indebtedness contracts (including, without limitation, guaranteesagency/broker agreements, contracts or arrangements whereby Holdings, the Company or a Subsidiary serves as a “third party administrator” for a client or insurance carrier, incentive compensation contracts overrides and similar arrangements) between the Company and its top ten (10) insurance carriers (as measured by commissions and fees, other than overrides and incentive compensation, recorded by the Company or a Subsidiary) on a consolidated group basis (including the parent company and all applicable operating subsidiaries) for each of the LiveArea Companies;
past two (v2) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other handcompleted fiscal years;
(vi) all currently effective collective bargaining agreements or agreements contracts with any labor organizationeach carrier participating in Holdings’, union or association to the Company’s and the Subsidiaries’ amateur sports, and golf and country club programs which a LiveArea Company is a partygovern the carrier’s participation in such programs;
(vii) all currently effective employment indentures, mortgages, promissory notes, loan agreements, guarantees or consulting other contracts or agreements providing of Holdings or the Company or a Subsidiary for annual salaries borrowing, or payments in excess any pledge or security arrangement causing an Encumbrance to be placed on a material asset or group of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent assets (tangible or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Companyintangible);
(viii) all existing Benefit Planscontracts and agreements that limit or purport to limit the ability of Holdings, the Company or any Subsidiary to compete in any line of business or with any Person or in any geographic area or during any period of time;
(ix) all currently effective agreements requiring severance payments contracts relating to capital expenditures or other purchases of equipment or other assets or properties (other than purchase orders for inventory or supplies in the ordinary course of business) in excess of $100,000 150,000 individually, or $250,000 in the aggregate with respect to Employeesa series of the related purchases;
(x) other than those contracts and agreements specified in clause (iv) above, all contracts and agreements involving between or relating to an outstanding loan toamong Holdings, the Company or investment inany Subsidiary, on the one hand, and any Stockholder, officer, director of Holdings, the Company or any Subsidiary or any Affiliate of Holdings or the Company, any Person;Subsidiary or any Stockholder, officer or director of such Affiliate, on the other hand; and
(xi) all currently effective agreements granting contracts pursuant to which, at any time since (A) January 1, 2012, Holdings, the Company or evidencing an Encumbrance on any property Subsidiary settled any Action and either paid, or asset expected to pay, in the aggregate, any sum of money in excess of $5,000, or (B) January 1, 2008, that requires Holdings, the Company or any LiveArea Company, Subsidiary to take or not to take any action or involves any settlement other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closingthe payment of money;
(xii) all currently effective Real Property Leasescontracts that establish a joint venture or partnership;
(xiii) all currently effective agreements contracts that provide relate to the acquisition, merger or purchase, at any time since January 1, 2007, of any portion of the equity, assets or business of a third party by Holdings, the Company or any Subsidiary, except for exclusive dealings between purchases of assets in the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line ordinary course of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all contracts that provide for payments (excluding commissions) based in any manner on the revenues or profits of Holdings, the Company or any Subsidiary, which are currently effective customer agreements granting due but unpaid or providing any “most favored nation” rights or best price protectionthat will become due and payable after the Effective Time;
(xv) all currently effective agreements setting forth obligations contracts that constitute a stockholders’ agreement, voting agreement, voting trust agreement, registration rights agreement or similar contract or agreement relating to the organization or management of Holdings, the Company or any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into of the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;Subsidiaries; and
(xvi) all currently effective other contracts and agreements, whether or not made in the ordinary course of business, the termination or cancellation of which would have a Material Adverse Effect. For purposes of this Section 3.15 and Sections 3.17, 3.18 and 3.19, the term “lease” shall include any and all leases, subleases, other use and occupancy arrangements, sale/leaseback agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000arrangements.
(b) Except as set forth on in Section 3.08(b3.15(b) of the Company Disclosure SchedulesSchedule, each Material Contract: (i) each Material Contract is valid and binding on the LiveArea Company party parties thereto and enforceable is in accordance with its terms against such LiveArea Companyfull force and effect, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the (ii) upon consummation of the transactions contemplated herebyby this Agreement and the Ancillary Agreements, except to the extent that any consents set forth in Section 3.06 of the Company Disclosure Schedule are not obtained, shall continue in full force and effect; . True and complete copies of all Material Contracts, including any material amendments to such Material Contracts, have been furnished, or made available to Parent by means of a virtual data room, either in physical or electronic format.
(iic) no Live Area Except as set forth in Section 3.15(c) of the Company Disclosure Schedule, (i) none of Holdings, the Company or any Subsidiary is in breach or default or in breach in of any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred whichthat, with the passage of time or the giving of notice or bothnotice, would result constitute such a default, (ii) to the Knowledge of Holdings and to the Knowledge of the Company, no other party to any Material Contract is in breach thereof, or default thereunder, in any material respect, and no event has occurred that, with passage of time or giving of notice, would constitute such a default, and (iii) none of Holdings, the Company or the Subsidiaries have received any notice (oral or written) of termination, cancellation, breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Gallagher Arthur J & Co)
Material Contracts. (a) Section 3.08(aSchedule 4.16a) of the Company Disclosure Schedules lists each Letter sets forth a true and complete list, as of the following contracts and other agreements date of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedulesthis Agreement, collectively, the “Material Contracts”):of:
(i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts;
(ii) all agreements that relate to other than (A) contracts providing for the sale acquisition, purchase, sale, funding, pledging or divestiture of any of mortgage backed securities and credit risk transfer securities entered into by the LiveArea Companies’ assets, other than Company or its Subsidiaries in the ordinary course of business and that are materially consistent with the contracts or forms of contract made available to Parent prior to the date hereof, and (B) capital expenditures repurchase contracts entered pursuant to the Company’s existing master repurchase agreements (as in effect as of the date hereof) to finance the purchase price of assets or development costs refinance the Company’s repurchase obligations pursuant to such master repurchase agreements, in each case in the ordinary course of the Company’s business, each contract (other than this Agreement) that involves a pending or expensescontemplated merger, for consideration business combination, acquisition, purchase, sale or divestiture contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt or making of future payments in excess of $500,000 in 250,000;
(ii) each contract that grants any right of first refusal or right of first offer or that limits the aggregateability of the Company, any Subsidiary of the Company or any of their respective Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any businesses, securities or assets (other than provisions requiring notice of or consent to assignment by any counterparty thereto);
(iii) all agreements that relate each contract relating to outstanding Indebtedness (or commitments or guarantees in respect thereof) of the acquisition of any business, a material amount of stock or assets of any other Person Company or any real property of its Subsidiaries (whether incurred, assumed, guaranteed or secured by mergerany asset) in excess of $250,000, sale of stock, sale of assets or otherwise)other than agreements solely among the Company and its wholly owned Subsidiaries;
(iv) except other than contracts providing for agreements relating to trade receivablesreverse repurchase transactions in the ordinary course of business involving Company Portfolio Securities in an amount of $250,000 or less, all agreements relating to Indebtedness (including, without limitation, guarantees) each contract under which the Company or a Subsidiary of the LiveArea CompaniesCompany has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or a Subsidiary of the Company);
(v) all currently effective agreements each contract that involves or constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a forward, swap or other hedging transaction of any type, unless entered into for bona fide hedging purposes;
(vi) each employment contract to which the Company or a Subsidiary of the Company is a party other than at-will arrangements that can be terminated at any time without material liability to the Company or any of its Subsidiaries;
(vii) each contract containing any non-compete, exclusivity or similar type of provision that materially restricts the ability of the Company or any of its Subsidiaries (including Parent upon consummation of the Transactions) to compete in any line of business or with any Person or geographic area;
(viii) each partnership, joint venture, limited liability company or strategic alliance agreement to which the Company or a Subsidiary of the Company is a party (other than any such agreement solely between or among a LiveArea the Company and its wholly owned Subsidiaries);
(ix) each contract between or among the Company or any Subsidiary of the Company, on the one hand hand, and Parent any officer, director or any Affiliate of Parent (other than a LiveArea wholly owned Subsidiary of the Company) of the Company or any of its Subsidiaries or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand;
(vix) all currently effective collective bargaining agreements each contract that obligates the Company or agreements with any labor organizationof its Subsidiaries to indemnify any past or present directors, union officers, or association employees of the Company or any of its Subsidiaries pursuant to which a LiveArea the Company or any of its Subsidiaries is a partythe indemnitor;
(viixi) all currently effective employment each vendor, supplier or third party consulting agreements providing for annual salaries or similar contract not otherwise described in this Section 4.16(a) that (A) cannot be voluntarily terminated pursuant to its terms within sixty (60) days after the Effective Time and (B) under which it is reasonably expected the Company or any of its Subsidiaries will be required to pay fees, expenses or other costs in excess of $250,000 following the Effective Time; and
(xii) each Contract not otherwise described in any other subsection of this Section 4.16(a) pursuant to which the Company or any Subsidiary of the Company is obligated to pay, or entitled to receive, payments in excess of $350,000250,000 in the twelve (12) month period following the date hereof.
(b) Collectively, the contracts described in Section 4.16(a) and each Contract required to be filed (or incorporated by reference) as an exhibit to any Company SEC Document filed on or after January 1, 2021, pursuant to Item 601(b)(1), (2), (4), (9) or (10) of Regulation S-K promulgated under the Securities Act that has been so filed (or incorporated by reference) are herein referred to as the “Company Contracts.” The Company has made available to Parent true and complete copies of all Company Contracts as of the date hereof, including target level awards under the Parent’s short term amendments and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with supplements thereto that modify each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging such Contract in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company material respect. Except as would not reasonably be expected to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute whichhave, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea a Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Material Adverse Effect, each Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and legal, valid, binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea on the Company and each of its Subsidiaries that is a party thereto and, to the knowledge of the Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue is in full force and effect; (ii) no Live Area , subject, as to enforceability, to Creditors’ Rights. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries is in breach or default or in breach in under any material respect of, orCompany Contract nor, to Sellers’ Knowledgethe knowledge of the Company, alleged to be in breach in is any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result Company Contract in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contractthereunder. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true Complete and complete copy accurate copies of each written Material Company Contract in effect as of the date hereof (including any amendments, modifications all amendments and modifications) have been furnished to or renewals relating thereto, but excluding statements of work) has been otherwise made available to BuyersParent. The LiveArea Business Neither the Company nor any of its Subsidiaries has not incurred received written notice of any material liability violation of or material default under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessCompany Contract.
Appears in 1 contract
Sources: Merger Agreement (Benefit Street Partners Realty Trust, Inc.)
Material Contracts. (a) Section 3.08(a) Except as set forth on Schedule B.12 and for Contracts that are Excluded Assets or Excluded Liabilities, as of the Disclosure Schedules lists each of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectivelydate hereof, the “Material Contracts”):Sellers of Transferred Assets, with respect to the Glass Machinery Business, and the Glass Machinery Share Companies are not parties to or otherwise bound by or subject to:
(i) each agreement any Contract that involves the receipt or payment by any Glass Machinery Unit of a LiveArea Company involving aggregate consideration in excess of more than $500,000 during FY 2020 and in any twelve (12) month period other than Contracts relating to the current calendar year and all shared customer contractssale of goods or the provision of services by a Glass Machinery Unit entered in the ordinary course of business by such Glass Machinery Unit;
(ii) all agreements any written employment, severance, consulting or sales representative Contract (other than those that relate to Active Employees) which contains an obligation (Aexcluding commissions) to pay more than $100,000 per year;
(iii) any Contract containing any covenant limiting the sale freedom of any a Seller of Transferred Assets, with respect of the LiveArea Companies’ assetsGlass Machinery Business or the operations of the Glass Machinery Business, or a Glass Machinery Share Company to engage in any line of business or compete with any Person in any geographic area in any material respect if such Contract will be binding after the Closing other than sales agency agreements granting exclusive territories to sales agents and Intellectual Property licenses or sharing agreements limiting the use of Intellectual Property;
(iv) any Contract in effect on the date of this Agreement relating to the disposition or acquisition of the assets of, or any interest in, any business enterprise other than in the ordinary course of business or (B) capital expenditures or development costs or expensesor, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that case of Sellers of Transferred Assets, Contracts which do not relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea CompaniesGlass Machinery Business;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other handFinancial Support Arrangements;
(vi) all currently effective collective bargaining agreements any indebtedness for borrowed money that would constitute an Assumed Liability or agreements a liability (other than an Excluded Liability) of a Glass Machinery Share Company, if in existence on the Closing Date, with any labor organization, union or association to which a LiveArea Company is a partyprincipal amount in excess of $500,000;
(vii) all currently effective employment any offset agreement entered into in connection with an international sales transaction and relating to any Contract that imposes an obligation to perform that will continue in effect on or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under after the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;Closing Date; or
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 any other material Contract not otherwise disclosed in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000Disclosure Schedules.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) specifically disclosed in Schedule B.12, each Material Contract disclosed in Schedule B.12 is a legal, valid and binding on obligation of the LiveArea respective Seller or Glass Machinery Share Company party thereto and enforceable against such Person in accordance with its terms against such LiveArea Company(except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally, including the effect of statutory and other laws regarding fraudulent conveyances and preferential transfers, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exceptionlimitations imposed by general equitable principles regardless of whether such enforceability is considered in a proceeding at law or in equity), and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area respective Seller or Glass Machinery Share Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in breach or default and has not failed to perform any obligation thereunder, and, to the knowledge of Black & Decker, there does not exist any event, condition or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in omission whi▇▇ ▇▇uld constitute a breach or default in any material respect (whether by lapse of time or notice or both) by any LiveArea Company orother Person, except, in either case, for any such default, failure or breach as has not had, and could not reasonably be expected to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice be material to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Glass Machinery Business.
Appears in 1 contract
Material Contracts. Schedule 3.25 sets forth an accurate and complete list (or where disclosed on another Schedule to this Agreement, a cross-reference to such Schedule) of all instruments, commitments, agreements, arrangements and understandings related to the Business to which the Company is a party or bound, or by which any of its assets are subject or bound, or pursuant to which the Company is a beneficiary, meeting any of the descriptions set forth below (the "MATERIAL CONTRACTS"):
(a) Section 3.08(aFactoring Agreements, Real Estate Leases, Personal Property Leases, Insurance, licenses of Intellectual Property, Software, Employment Contracts, Benefit Plans and Licenses and Permits;
(b) Any uncompleted contract for capital expenditures or for the purchase of goods or services in excess of $50,000;
(c) Any uncompleted purchase order, agreement or commitment in an amount in excess of $50,000 entered into other than in the Disclosure Schedules lists ordinary course of business obligating the Company to sell or deliver any product or service at a price which does not cover the cost (including labor, materials and production overhead) plus the customary profit margin associated with such product or service;
(d) Any outstanding financing agreement or other agreement for borrowing money, any instrument evidencing indebtedness, any liability for borrowed money, any obligation for the deferred purchase price of property, in each case in excess of $50,000 (excluding normal trade payables), or any instrument guaranteeing any indebtedness, obligation or liability in an amount in excess of $50,000;
(e) Any outstanding joint venture, partnership, cooperative arrangement or any other agreement involving a sharing of profits;
(f) Any outstanding advertising contract not terminable without payment or penalty on sixty (60) days (or less) notice;
(g) Any outstanding contract with any government or any agency or instrumentality thereof;
(h) Any outstanding contract with respect to the following contracts and discharge, storage or removal of effluent, waste or pollutants, other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):than ordinary nonhazardous waste removal;
(i) each Any outstanding contract, license or royalty agreement related to the use of a LiveArea Intellectual Property requiring payments by the Company involving aggregate consideration in amounts aggregating in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts50,000;
(iij) all agreements that relate to Any power of attorney, proxy or similar instrument;
(Ak) The Charter, By-laws and other organizational or constitutive documents of the Company and any agreement among stockholders of the Company;
(l) Any outstanding contract for the manufacture of any product of the Business which has a term of one year or more;
(m) Any outstanding contract for the purchase or sale of any of the LiveArea Companies’ its assets, other than in the ordinary course or granting an option or preferential rights to purchase or sell any assets;
(n) Any outstanding contract to indemnify any party or to share in or contribute to the liability of any party;
(o) Any outstanding contract for the purchase or sale of foreign currency or otherwise involving foreign exchange transactions;
(p) Any outstanding contract containing covenants not to compete in any line of business or with any person in any geographical area;
(Bq) capital expenditures Any outstanding contract relating to the acquisition of a business or development costs the equity of any other person;
(r) Any outstanding contract relating to the purchase or expenses, for consideration sale of a portion of its requirements or output;
(s) Any outstanding contract entered into outside the ordinary course of the Business in an amount in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances100,000; and
(xviiit) all currently effective agreements Any other contract, commitment, agreement, arrangement or understanding related to which any LiveArea Company is a party or the Business (other than those excluded by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as an express exception from the descriptions set forth on Section 3.08(bin subsections (a) of the Disclosure Schedules: through (r) above) which (i) provides for payment or performance by either party thereto having an aggregate value of $100,000 or more, or (ii) is between a Related Party and the Company. Accurate and complete copies of each Material Contract have been delivered to Kellwood. Each Material Contract is valid in full force and effect and is valid, binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea terms. The Company and, to the knowledge of the Company, and to Sellers’ Knowledge, each other party (except as set forth on Schedule 3.25) has complied with all material commitments and obligations on its part to be performed or observed under each Material Contract. To the knowledge of the Company, no event has occurred which is or, after the giving of notice or passage of time, or both, would constitute, a default under or a breach of any Material Contract by the Company, or, to the knowledge of the Company, by any other party (except as set forth on Schedule 3.25). To the knowledge of the Company, the Company has not received or given notice of an intention to cancel or terminate a Material Contract or, as the result of the breach of such Material Contract by another party thereto, subject to exercise or not exercise options or rights under a Material Contract. The Company has not received any notice of a default, offset or counterclaim under any Material Contract, or any other communication calling upon the Bankruptcy ExceptionCompany to comply with any provision of any Material Contract or ascertaining noncompliance. Except as set forth on Schedule 3.25, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default without notice to or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default consent or in breach in any material respect approval of any such Material Contract; and (iv) no event has occurred whichparty, with the passage of time will not constitute a default under or the giving of notice or both, would result in a breach or default in of any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case provision of a Material Contract with a stated term or (y) within one year following Contract, and the Closing Date, in the case of a Company will have and may enjoy and enforce all rights and benefits under each Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessContract.
Appears in 1 contract
Sources: Merger Agreement (Kellwood Co)
Material Contracts. (a) Except for agreements entered into after the date hereof in accordance with Section 3.08(a) 7.2 or as otherwise contemplated by this Agreement, or as set forth on Schedule 5.12 (the "Material Contracts"), none of the Disclosure Schedules lists each Conveyed Subsidiaries (or a Subsidiary of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(fa Conveyed Subsidiary) of the Disclosure Schedules, collectively, the “Material Contracts”):nor any Asset Selling Corporation is a party to or bound by:
(i) each any contract, agreement or other arrangement for the purchase of a LiveArea Company involving aggregate consideration Inventories, or other personal property with any supplier or for the furnishing of services to the Business extending beyond one year from the date hereof or the terms of which provide for financial commitments in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts1,000,000;
(ii) all agreements that relate to (A) any contract, agreement and other arrangement for the sale of Inventories or other personal property or for the furnishing of services by the Business with firm commitments in excess of three years from the date hereof;
(iii) any broker, distributor, dealer, manufacturer's representative, franchise and agency agreements related to the Business the terms of which provide for financial commitments in excess of $1,000,000;
(iv) any contracts and agreements relating to indebtedness for borrowed money, factoring arrangements, sale and leaseback transactions, deferred purchase price of property and other similar financing transactions relating to the Business with respect to which a Conveyed Subsidiary (or a Subsidiary of the LiveArea Companies’ assetsConveyed Subsidiary) or Asset Selling Corporation is an obligor in excess of $1,000,000;
(v) any research and development agreements relating to the Business the terms of which provide for aggregate commitments to be paid by or to a Conveyed Subsidiary (or a Subsidiary of the Conveyed Subsidiary) or Asset Selling Corporation in excess of $1,000,000;
(vi) any agreements entered into since March 1, 1995 providing for the acquisition or disposition of any capital stock of any Conveyed Subsidiary (or a Subsidiary of a Conveyed Subsidiary), Conveyed Assets or assets of a Conveyed Subsidiary or Asset Selling Corporation related to the Business and having an aggregate value in excess of $2,000,000, other than the sale of Inventories in the ordinary course of business the Business consistent with past practice or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a partyobsolete equipment;
(vii) all currently effective employment any contract or consulting agreements providing agreement relating to the Business that provides for annual salaries any exclusive arrangement relating to the sale of any product produced, distributed or payments in excess of $350,000, including target level awards under sold by the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable Business or that limits or purports to Employees by Parent or PFS as a result limit the ability of the transactions contemplated by this Agreement, Conveyed Subsidiaries and all agreements each Subsidiary of a Conveyed Subsidiary or the Asset Selling Corporations to compete in any line of business or with each staffing firm any Person or agency engaged in the provision any geographic area or during any period of temporary workers to a LiveArea Company;time; and
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving any contract, agreement or relating to arrangement with an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000Affiliate.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedulesdisclosed in Schedule 5.12: (i) each Material Contract is valid and binding on the LiveArea Company Seller Corporation or Conveyed Subsidiary (or a Subsidiary of the Conveyed Subsidiary) that is a party thereto and enforceable in accordance with its terms against such LiveArea Companythereto, and to Sellers’ Knowledgethe Knowledge of Pfizer, each the other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue is in full force and effect; , and (ii) no Live Area Company Asset Selling Corporation or Conveyed Subsidiary (or a Subsidiary of a Conveyed Subsidiary) is in default or in breach in any material respect of, oror default under, to Sellers’ Knowledge, alleged to be in breach in any material respect of, (x) any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in which breach or default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term Adverse Effect or (y) within one year following (i) the Closing DateSettlement and License Agreement among ▇▇▇▇▇▇▇▇▇ (Europe) AG, in ▇▇▇▇▇▇▇▇▇ (USA) Inc. and Advanced Cardiovascular Systems, Inc., dated December 17, 1991, as amended, (ii) the case of a Material Contract without a stated termSettlement and License Agreement by and among ▇▇▇▇▇▇▇▇▇ (Europe) AG, ▇▇▇▇▇▇▇▇▇ (USA) Inc., ▇.▇. A true ▇▇▇▇, Inc. and complete copy of each written Material Contract (including any amendments▇.▇. ▇▇▇▇▇▇ de Nemours and Company, modifications or renewals relating theretodated January 24, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business1992, as amended, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of (iii) the LiveArea BusinessSettlement and License Agreement by and among ▇▇▇▇▇▇▇▇▇ (Europe) AG, ▇▇▇▇▇▇▇▇▇ (USA) Inc., Cordis Europa N.V. and Cordis Corporation, dated September 7, 1995, as amended ((i), (ii) and (iii) are herein collectively referred to as the "Subject Agreements").
Appears in 1 contract
Material Contracts. (a) Except for agreements entered into after the date hereof in accordance with Section 3.08(a) 7.2 or as set forth on Schedule 5.12 (the "Material Contracts"), none of the Disclosure Schedules lists each Conveyed Subsidiaries (or a Subsidiary of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(fa Conveyed Subsidiary) of the Disclosure Schedules, collectively, the “Material Contracts”):nor any Asset Selling Corporation is a party to or bound by:
(i) each any contract, agreement or other arrangement 69 for the purchase of a LiveArea Company involving aggregate consideration Inventories, or other personal property with any supplier or for the furnishing of services to the Business extending beyond one year from the date hereof or the terms of which provide for financial commitments in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts1,000,000;
(ii) any contract, agreement and other arrangement for the sale of Inventories or for the furnishing of services by the Business with firm commitments in excess of one year from the date hereof (in the case of the United States) and three years from the date hereof (in the case of all other locations);
(iii) any broker, distributor, dealer, manufacturer's representative, franchise and agency agreements related to the Business that is not cancelable on 60 days' notice or less without financial penalty;
(iv) any contracts and agreements relating to indebtedness for borrowed money, factoring arrangements, sale and leaseback transactions and deferred purchase price of property or other similar financial arrangement relating to the Business with respect to which a Conveyed Subsidiary (or a Subsidiary of the Conveyed Subsidiary) or Asset Selling Corporation is an obligor in excess of $1,000,000; 70
(v) any patent or technology or trademark licenses or agreements or research and development or design agreements relating to the Business the terms of which provide for aggregate commitments to be paid by or to a Conveyed Subsidiary (or a Subsidiary of the Conveyed Subsidiary) or Asset Selling Corporation in excess of $100,000; and
(vi) other than intercompany agreements that are not being assigned to or assumed by Purchaser, all agreements that relate to entered into since March 1, 1995 providing for (A) the sale disposition of any capital stock of any Conveyed Subsidiary (or a Subsidiary of a Conveyed Subsidiary), or (B) the LiveArea Companies’ assetsacquisition or disposition of any Conveyed Assets or assets of a Conveyed Subsidiary and having an aggregate value in excess of $2,000,000, other than the sale of Inventories in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business Business consistent with past practice where such indemnification obligations are not or the primary purpose sale of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.obsolete equipment. 71
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: disclosed in Schedule 5.12, (i) each Material Contract is valid and binding on the LiveArea Company Seller Corporation or Conveyed Subsidiary (or a Subsidiary of the Conveyed Subsidiary) that is a party thereto and enforceable in accordance with its terms against such LiveArea Companythereto, and to Sellers’ Knowledgethe Knowledge of Pfizer, each the other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue is in full force and effect; , and (ii) no Live Area Company Asset Selling Corporation or Conveyed Subsidiary (or a Subsidiary of a Conveyed Subsidiary) is in default or in breach in any material respect of, oror default under, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time which breach or the giving of notice or both, default would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessAdverse Effect.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a) Schedule 3.12 sets forth as of the Disclosure Schedules lists each date hereof all of the following contracts and other agreements of the LiveArea Business executory Contracts to which any Acquired Company is a party (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):
(i) each agreement Contracts with any current Company Employee with an annual remuneration (salary, any target variable compensation and bonus) in excess of $250,000 and Contracts with any stockholder, executive officer or director of any Acquired Company that may not be terminated without charge or penalty;
(ii) Contracts with any labor union, association or body representing any employee of any Acquired Company;
(iii) Contracts (A) for the sale after the Balance Sheet Date of any asset or group of assets of the Acquired Companies for consideration in excess of $1,000,000, or (B) involving any obligation or commitment relating to any acquisition or disposition of any equity interest of any Acquired Company, except for non-material Contracts entered into in the Ordinary Course of Business;
(iv) Contracts involving any obligation on the part of any Acquired Company to refrain from competing in the business of the Acquired Companies with any Person or from conducting the business of the Acquired Companies in any geographic region;
(v) Contracts that grant a LiveArea license to any Acquired Company to use Intellectual Property material to the business currently conducted by such Acquired Company (excluding Commercial Software or licenses with annual fees of $500,000 or less);
(vi) Contracts relating to the acquisition by any Acquired Company of any operating business or the capital stock of any other Person;
(vii) Contracts of the Acquired Companies involving annual aggregate consideration in excess of $500,000 during FY 2020 and 1,000,000 or requiring performance by any party more than one year from the current calendar year and all shared customer contractsdate hereof, which, in each case, cannot be cancelled by the Acquired Company without penalty or without more than ninety days’ notice;
(iiviii) all agreements that relate Contracts pursuant to (A) which any Acquired Company has outstanding Indebtedness requiring aggregate payments by the sale of any of the LiveArea Companies’ assets, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration Acquired Company in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plansyear;
(ix) all currently effective agreements requiring severance payments Contracts providing for the guaranty by any Acquired Company of any obligation for borrowed money of a third Person that is not an Acquired Company, other than obligations described in excess of $100,000 in the aggregate to Employees;clause (vii); and
(x) all agreements involving joint venture or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000partnership agreements.
(b) Except as set forth on Section 3.08(b) All Material Contracts are valid and enforceable obligations of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea applicable Acquired Company, and and, to Sellers’ Knowledgethe Knowledge of the Company, each other Person party thereto, subject to the Bankruptcy Exceptionapplicable bankruptcy, insolvency, reorganization, moratorium and other Laws affecting creditors’ rights and remedies generally, and immediately following the consummation subject, as to enforceability, to general principles of the transactions contemplated herebyequity, shall continue including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in full force and effect; (ii) no Live Area a proceeding at law or in equity). No Acquired Company is in material default under any Material Contract to which it is a party and no Acquired Company has received any written notice of any default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred whichthat, with the passage notice or lapse of time or the giving of notice time, or both, would result in constitute such a breach or default in any material respect by any LiveArea of the Acquired Companies.
(c) The Company or, has made available to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, Parent in the case of Data Room a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete correct copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessContract.
Appears in 1 contract
Material Contracts. Except as listed on Schedule 4.15 hereto or ------------------ any other schedule hereto, Metro is not a party to any:
(a) Section 3.08(a) of the Disclosure Schedules lists each of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):
(i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts;
(ii) all agreements that relate to (A) the sale of any of the LiveArea Companies’ assets, other than contract not made in the ordinary course of business business;
(b) contract for the employment of any officer or employee;
(Bc) capital expenditures or development costs or expenses, for consideration advertising agreement with a remaining term in excess of one year and a payment obligation in excess of $500,000 in the aggregate10,000;
(iiid) all agreements that relate to the acquisition of any businessfranchise, a material amount of stock distributorship or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise)sales agency agreement;
(ive) except contract for agreements relating to trade receivablesthe future purchase of materials, all agreements relating to Indebtedness (includingsupplies, without limitationservices, guarantees) merchandise or equipment for an amount in excess of $10,000 or not capable of being fully performed or not terminable within a period of one year from the LiveArea Companiesdate hereof or in excess of normal operating requirements;
(vf) all currently effective agreements between agreement for the sale or among a LiveArea Company on the one hand and Parent or lease of any Affiliate of Parent (other than a LiveArea Company) on the other handits assets;
(vig) all currently effective collective bargaining agreements contract or agreements with any labor organization, union or association to which a LiveArea Company is a partycommitment for capital expenditures in excess of $25,000;
(viih) all currently effective employment mortgage, pledge, conditional sales contract, security agreement, factoring agreement, or consulting agreements providing for other similar agreement with respect to any of its real or personal property;
(i) lease of machinery or equipment involving annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company10,000;
(viiij) all existing Benefit Plansagreement with a labor union or labor association;
(ixk) all currently effective agreements requiring severance loan agreement, promissory note issued by it, guarantee, subordination, indemnity or similar type of agreement;
(l) stock option, retirement, severance, pension, bonus profit sharing, group insurance, medical or other fringe benefit plan or program providing employee benefits; or
(m) consulting agreement involving annual payments in excess of $100,000 in the aggregate 10,000. Complete and correct copies of each such agreement have been furnished or made available to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing ▇▇▇▇▇ and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) EMS. Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea CompanySchedule 4.15 hereto, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract Metro has performed all of the obligations in all material respects required to be performed by it under such Material Contract to date and is not in default default, or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with default but for the passage of time or the giving of notice notice, under any of the agreements, leases, contracts or bothother documents to which it is a party listed on Schedule 4.15 hereto, other than those failures to perform and defaults which would not result in a Material Adverse Effect. Except as set forth on Schedule 4.15 hereto, to the best of Metro's knowledge, no party with whom Metro has such a scheduled agreement is in default thereunder, or is in default but for the passage of time or giving of notice, which default would result in a breach Material Adverse Effect. All such scheduled agreements are in full force and effect and are enforceable against the parties thereto in accordance with their terms subject to the Bankruptcy and Equity Exceptions. Except as disclosed herein or default on Schedule 4.15 hereto, Metro is not a party to any non-compete or similar agreement which restricts in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements way the current operation of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Businessbusiness.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Metro Display Advertising Inc)
Material Contracts. (a) Section 3.08(a) 3.15 of the Disclosure Schedules lists Schedule sets forth a list each of the following contracts and other agreements of Contracts to which the LiveArea Business Company is a party or pursuant to which goods are sold to or services are rendered to the Company (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):
(i) each agreement Contracts with any stockholders or any current or former officer, director or employee of the Company or any Affiliate of the Company or a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contractsSeller Party;
(ii) all Contracts or collective bargaining agreements that relate to with any labor union or association representing any Employee;
(Aiii) Contracts (regardless of when entered into) which provide for the sale sale, after the date of the Interim Balance Sheet, of any of the LiveArea Companies’ assets, other than in assets of the ordinary course of business or (B) capital expenditures or development costs or expenses, Company for consideration in excess of $500,000 20,000, other than the sale of products in the aggregate;
(iii) all agreements that relate to the acquisition Ordinary Course of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise)Business;
(iv) except for agreements relating Contracts, other than any dealer agreements, involving the future performance of services or the future delivery of goods or materials by or to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) the Company of the LiveArea Companiesan amount or value in excess of $20,000 per year;
(v) all currently effective agreements between Contracts containing covenants materially limiting the freedom of the Company to compete in any line of business or among a LiveArea Company on the one hand and Parent with any Person in any geographic area or any Affiliate of Parent (other than a LiveArea Company) on the other handmarket;
(vi) all currently effective collective bargaining agreements Contracts, other than any dealer agreements, involving a retailer, distributor or agreements with any labor organization, union sales representative that by their terms are not terminable by the Company at will or association to which a LiveArea Company is a partyby giving notice of 90 days or less in either case without liability;
(vii) all currently effective employment Contracts containing any change-in-control, assignment, default or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees other similar provisions that may be implicated by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;written dealer agreements between the Company and any of its top twenty-five (25) dealers (in terms of the Company’s sales during the current fiscal year through the date of the Interim Balance Sheet based on the Company’s records); and
(ix) all currently effective agreements requiring severance payments in excess Contracts to which any of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company Seller Parties or any of its properties or assets to any Encumbrances; and
their Affiliates (xviiiother than the Company) all currently effective agreements to which any LiveArea Company is a party or by which that relate to any of its assets or business is bound that involve amounts exceeding $500,000Assumed Liability.
(b) Except as set forth on Section 3.08(b) The Seller Parties have made available to the Buyer true, correct and complete copies of the Disclosure Schedules: (i) each Material Contract which are not publicly available. Neither the Company nor either of the Seller Parties has received written notice of any current material breach under any Material Contract by the Company and, to the Knowledge of the Seller Parties, no other party to any of the Material Contracts is valid and in material default thereunder. Each of the Material Contracts is a valid, binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea obligation of the Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessGeneral Enforceability Exceptions.
Appears in 1 contract
Sources: Stock Purchase Agreement (Fleetwood Enterprises Inc/De/)
Material Contracts. (a) Section 3.08(aOther than those Contracts which the Corporations enter into during the Interim Period, the entering into of which do not result in a breach of this Agreement by the Vendor, Schedule 3.5(6) of the Disclosure Schedules Certificate lists each or identifies all of the following contracts and other agreements Contracts related to the Business to which any of the LiveArea Business Corporations is a party (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):
(ia) each agreement with any supplier listed in Schedule 3.5(3) to the Disclosure Certificate that required payments by or on behalf of a LiveArea Company involving aggregate consideration PCLI or any of the PCLI Subsidiaries in excess of $500,000 10,000,000 during FY 2020 and the current calendar year and all shared customer contractsmost recently completed fiscal year;
(iib) all agreements that relate with any customer or customer group listed in Schedule 3.5(4) to (A) the sale of Disclosure Certificate from which PCLI or any of the LiveArea Companies’ assets, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or PCLI Subsidiaries received payments in excess of $350,000, including target level awards under 10,000,000 during the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Companymost recently completed fiscal year;
(viiic) all existing Benefit Plansthat contains covenants restricting the ability of PCLI or any of the PCLI Subsidiaries to compete in any material respect in any line of business or geographical area;
(ixd) all currently effective agreements requiring severance payments that grants any of PCLI or the PCLI Subsidiaries an equity interest in any partnership or joint venture;
(e) that includes a material licence or lease granted to or by the Corporations in respect of the Real Properties or Leased Premises;
(f) that relates to warehousing arrangements material to the Business;
(g) the Intellectual Property licences required to be set forth on Schedule 3.4(5)(b) of the Disclosure Certificate;
(h) that relates to Indebtedness incurred by any of PCLI or the PCLI Subsidiaries in excess of $100,000 in the aggregate to Employees10,000,000;
(xi) all agreements involving that involves the disposition or relating to an outstanding loan to, acquisition of securities or investment in, any Person;
assets outside the Ordinary Course of Business within the twelve (xi12) all currently effective agreements granting or evidencing an Encumbrance on any property or asset months immediately preceding the date hereof in excess of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging $10,000,000 in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrancescase; and
(xviiij) all currently effective any employment contract with an officer or employee, or any contract for the engagement of a person as a consultant or contractor (in each case, in lieu of employment), and in each case other than oral contracts of indefinite term that are terminable by the applicable Corporation without cause, and that, in each case, provide for base compensation (excluding, without limitation, bonuses, benefits, short or long-term incentives, or other secondary or indirect compensation) greater than $250,000 per calendar year (the applicable officers and employees, but not consultants, being the “Designated Employees”); provided, however, that notwithstanding the foregoing, a “Material Contract” shall exclude any Contract that would otherwise be disclosed above, but which (1) is terminable for convenience by any party thereto on ninety (90) days or less notice without penalty, except for those agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
described in subsection (b) Except as set forth on Section 3.08(bg) of this Section; or (2) that relates to one or more of the Disclosure Schedules: (i) each Benefit Plans. Each Material Contract is a valid and binding on obligation of, and enforceable against, PCLI, any of the LiveArea Company PCLI Subsidiaries or the member of the Suncor Group that is party thereto and enforceable in accordance with its terms against such LiveArea Companyand, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ KnowledgeVendor’s knowledge, each other party to each such Material Contract has performed all obligations in all material respects required Contract, subject to limitations imposed by bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights and available equitable remedies, and except for such failures to be performed by it under such valid, binding or enforceable as does not have a Material Contract and Adverse Effect. None of PCLI, any of the PCLI Subsidiaries or any member of the Suncor Group is not in default or in breach in any material respect of any such a Material Contract; , and (iv) no event none of PCLI, any of the PCLI Subsidiaries or any member of the Suncor Group has occurred which, with the passage of time or the giving of received written notice or both, would result in a breach or default in from any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any a Material Contract (excluding statements of work) has provided written notice such counterparty’s decision to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to repudiate, terminate such Material Contract (x) prior to its stated termination dateor, in the case of a Material Contract with a stated unilateral right on the part of the counterparty to renew the term or (y) within one year following the Closing Datethereof, in the case of not renew prior to expiration a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessContract.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a3.15(a) of the Seller Disclosure Schedules lists each Schedule sets forth as of the date of this Agreement a true and complete list of the following contracts and Contracts (other agreements of than the LiveArea Excluded Assets) to which any Transferred Entity is a party to or bound by or that are Parent Business Contracts (together with all leases listed in Contracts required to be disclosed on Section 3.09(f3.15(a) of the Seller Disclosure SchedulesSchedule, and any lease or sublease of Business Leased Real Property, collectively, the “Business Material Contracts”):
(i) each agreement all Contracts pursuant to which any Transferred Entity or member of a LiveArea Company involving aggregate consideration the Parent Group (to the extent relating to the Business) purchased, in excess the aggregate, $50,000,000 or more of $500,000 goods and/or services during FY 2020 and the current calendar year and all shared customer contractstwelve (12)-month period immediately preceding December 31, 2014;
(ii) all agreements that relate Contracts containing a minimum sales commitment for the Business to sell during the twelve (A12)-month period immediately following, or pursuant to which the Business has sold during the twelve (12)-month period immediately preceding, December 31, 2014, in the aggregate, $50,000,000 or more of goods and/or services;
(iii) any Contract containing any future capital expenditure obligations of the sale Transferred Entities or in respect of the Business in excess of $20,000,000;
(iv) any material Contract relating to a Business Joint Venture;
(v) any Contract relating to the acquisition or disposition of any of the LiveArea Companies’ assetsbusiness, assets (other than assets acquired in the ordinary course of business consistent with past practices) or (B) capital expenditures stock or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition other equity interests of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating under which any Transferred Entity has any remaining obligation with respect to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between an “earn out,” contingent purchase price or among a LiveArea Company on the one hand and Parent similar contingent payment obligation or any Affiliate of Parent (other than a LiveArea Company) on the other handremaining material indemnification obligations;
(vi) all currently effective collective bargaining agreements any Contract containing covenants that restrict or agreements limit in any material respect the ability of the Transferred Entities to compete in any business or with any labor organization, union Person or association to which a LiveArea Company is a partyin any geographic area;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and (A) any amounts payable Contract pursuant to Employees by Parent or PFS as a result which any of the transactions contemplated Transferred Entities or member of the Parent Group (to the extent relating to the Business) receives a license, or covenant not to be sued under, or is otherwise permitted by this Agreementa third party to use, and all agreements with each staffing firm any material Intellectual Property (other than any “shrink wrap,” “commercially available software package” or agency engaged “click through” licenses that are generally available on non-discriminatory pricing terms ) or (B) any Contract pursuant to which a third party licenses, or receives a covenant not to be sued under, any material Intellectual Property from any of the Transferred Entities or member of the Parent Group (to the extent relating to the Business) other than non-exclusive licenses granted to customers of the Business in the provision ordinary course of temporary workers to a LiveArea Companythe Business consistent with past practice;
(viii) all existing Benefit Plans;any Contract for the development or acquisition of any Intellectual Property material to the Business and the Transferred Entities, taken as a whole (other than any Contracts required to be scheduled pursuant to clause (vii) above); and
(ix) all currently effective agreements requiring severance payments any Contract relating to or evidencing third-party Indebtedness of the type descried in clause (a) or clause (b) of the definition of Indebtedness that, in each case, has an aggregate outstanding principal amount in excess of $100,000 10,000,000. Any and all amendments (as of the date hereof) to the Business Material Contracts or any other Contracts listed in the aggregate Seller Disclosure Schedule have been provided or made available (prior to Employees;12:00 p.m., New York City time, on July 19, 2015) to Purchaser or to Purchaser’s outside counsel on an outside counsel only basis prior to the date hereof, as set forth on Section 3.15(a) of the Seller Disclosure Schedule under the heading “Contract Locations”.
(xb) all agreements involving Except as would not reasonably be expected to have a Business Material Adverse Effect, (i) each Business Material Contract and each Purchase Order that would have been required to be disclosed on Section 3.15(a) of the Seller Disclosure Schedule (but for the exclusion of Purchase Orders from the definition of “Contract”) is a legal, valid and binding obligation of a Transferred Entity or relating member of the Parent Group, as applicable, and is in full force and effect and, to an outstanding loan tothe Knowledge of Parent, is a legal, valid and binding obligation of each counterparty thereto. No member of the Parent Group and none of the Transferred Entities or, to the Knowledge of Parent, any other party thereto, is in breach of, or investment inin default under, any Person;
(xi) all currently effective agreements granting such Business Material Contract or evidencing an Encumbrance on Purchase Order, and no event or circumstance has occurred that, with notice or lapse of time or both, would constitute such a breach or default thereunder by any property Transferred Entity or asset any member of the Parent Group, or, to the Knowledge of Parent, any LiveArea Companyother party thereto, other than a Permitted Encumbrance or Encumbrance except for such breaches and defaults that will have not had and would not reasonably be released at or prior expected to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute whichhave, individually or in the aggregate, involve amounts exceeding $250,000 a Business Material Adverse Effect. True and complete, in each case in all material respects, copies, as at the date hereof, of each such Business Material Contract (other than Contracts that do not deviate in any material respect from the standard forms made available to Purchaser prior to the date hereof) have been made available to Purchaser prior to the date hereof. As of the date hereof, no member of the Parent Group nor any Transferred Entity has received written notice of material default or which otherwise provide for any equitable remedy or subject any LiveArea Company or any termination (other than expirations in accordance with the terms of its properties or assets the applicable contract) with respect to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000Business Material Contract.
(bc) Except as set forth on Section 3.08(b3.15(c) of the Seller Disclosure Schedules: Schedule, as of the date hereof, there is no Contract to which any member of the Parent Group is a party (iand no Transferred Entity is a party) each Material Contract pursuant to which the Business obtains any “product” (as such term is valid and binding on customarily used by the LiveArea Company party thereto and enforceable Business) (e.g., fabrications, materials, composites, components, hardware, machined parts, engineered items, electronics or special product processes that are part of, used in accordance with its terms against such LiveArea Companythe manufacture of, and to Sellers’ Knowledgeor sold together with, each other party thereto, subject any products of the Business) that is material to the Bankruptcy ExceptionTransferred Entities and the Business, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in taken as a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto whole (other than any LiveArea Company) under any Material Contract. No counterparty to any Material applicable Parent Business Contract (excluding statements or Contract that is the subject of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessSection 3.17).
Appears in 1 contract
Material Contracts. (a) Set forth on Section 3.08(a) 4.11 of the Disclosure Schedules lists Schedule is a list of each of the following contracts agreements to which any Pinehurst Entity is a party or bound (each, a “Material Contract” and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):
(ia) each agreement of Any Contract for or relating to any Indebtedness incurred by a LiveArea Company involving aggregate consideration Pinehurst Entity in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts75,000 or requiring payments in excess of $75,000;
(iib) all agreements that relate to (A) the sale of Any guaranty, direct or indirect, by any of the LiveArea CompaniesPinehurst Entities of any obligation for borrowings, advances, goods or services purchased or otherwise, excluding endorsements made for collection in the Ordinary Course of Business;
(c) Any Contract made other than in the Ordinary Course of Business and calling for future payments in excess of $75,000 in the aggregate which is not terminable by the Pinehurst Entities upon less than 90 days’ assetsnotice without penalty;
(d) Any Contract, including any employment, confidentiality, non-disclosure, non-competition, non-solicitation, compensation, commission, bonus, loan or severance arrangements, with any Employee;
(e) Any Contract with any consultant, advisor or sales representative calling for future guaranteed payments in the aggregate in excess of $25,000 annually that is not terminable (without penalty) on 60 days or less notice;
(f) Any Contract with a term in excess of one (1) year and providing for future annual payments aggregating in excess of $75,000 that is not terminable (without penalty) on 90 days or less notice;
(g) Any settlement agreement or consent decree in respect to any Employee or Former Employee, the terms and conditions of employment of any Employee or Former Employee, or the working conditions of any Employee or Former Employee other than any such agreement providing solely for the payment of monetary damages which was entered into and fully performed prior to the date hereof;
(h) Any agreement under which any Pinehurst Entity licenses Intellectual Property to, or licenses Intellectual Property from, a third Person, but excluding any licenses of commercially available, off-the-shelf software programs or licenses purchased or licensed for less than a total cost of $25,000;
(i) Any Contract that forms a partnership, joint venture or similar entity;
(j) Any Contract relating to the generation, use, treatment, transport, storage, handling, Release or disposal of any Hazardous Material;
(k) Any Contract with any Governmental Entity that currently is binding on, or restricts the actions of, any of the Pinehurst Entities with respect to the Real Property;
(l) Any Contract in the nature of a settlement or a conciliation agreement arising out of any claim asserted by any Person other than any such agreement providing solely for the payment of monetary damages which was entered into and fully performed prior to June 30, 2006;
(m) Any material rebate, volume discount, price reduction or similar right given by any of the Pinehurst Entities;
(n) Any Contract with any labor union or other employee representative of a group of Employees;
(o) Any Contract (however named) involving a sharing of profits, losses, costs or liabilities by the Pinehurst Entities with any other Person;
(p) Any Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by any Pinehurst Entity to be responsible for consequential damages;
(q) Any written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by any Pinehurst Entity, other than in the ordinary course Ordinary Course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any EncumbrancesBusiness; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (ir) each Material Contract is valid amendment, supplement and binding on the LiveArea Company party thereto and enforceable modification (whether oral or written) in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; of the foregoing. ClubCorp or Pinehurst Company has delivered or made available to Purchaser an accurate and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true correct and complete copy of each of the Material Contracts, and has provided Purchaser with written summaries of all Material Contracts that are unwritten (if any). With respect to each of the Material Contracts, (i) the agreement is legal, valid, binding, enforceable and in full force and effect in all material respects, subject only to the effect, if any, of (A) applicable bankruptcy, insolvency, moratorium or other similar Laws affecting the rights of creditors generally, and (B) rules of Law governing specific performance, injunctive relief and other equitable remedies, (ii) the Pinehurst Entities are, and at all times since December 31, 2005 have been, in material compliance with all applicable terms and requirements of each Material Contract, and, to the Sellers’ Knowledge, all other parties to each Material Contract are, and at all times since December 31, 2005 have been, in material compliance with all applicable terms and requirements of each Material Contract, (including any amendmentsiii) to the Sellers’ Knowledge, modifications no event has occurred that, with notice or renewals relating theretolapse of time, but excluding statements of workwould constitute a material breach or default, or permit termination, modification or acceleration under such Material Contract, (iv) to the Sellers’ Knowledge, no Party has been made available to Buyers. The LiveArea Business has not incurred repudiated any material liability provision of such Material Contract, (v) no notices of termination or cancellation thereof have been given or received by ClubCorp, Pinehurst Company or the Pinehurst Entities, and (vi) to the Sellers’ Knowledge, there are no material unresolved disputes involving the Pinehurst Entities under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessContract.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a) of Except for the Disclosure Schedules lists each of Operative Documents and the following contracts and other agreements of set forth on Schedule 3.17 (collectively with the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectivelyOperative Documents, the “Material Contracts”):
), as of the Closing Date there are no (ia) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and employment agreements covering the current calendar year and all shared customer contracts;
(ii) all agreements that relate to (A) the sale management of any of the LiveArea Companies’ assetsBorrower, other than in the ordinary course of business or (Bb) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or other similar labor agreements with covering any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset employees of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of businessBorrower, (Bc) competing with any Personagreements for administrative, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third partymanagerial, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development consulting or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements services to which any LiveArea Company Borrower is a party or by which it is bound, (d) agreements regarding any Borrower, its assets or operations or any investment therein to which any of its assets equityholders is a party or business by which it is bound that involve amounts exceeding $500,000.
bound, (e) real estate leases, Intellectual Property licenses or other lease or license agreements to which any Borrower is a party, either as lessor or lessee, or as licensor or licensee (other than licenses arising from the purchasing of “off the shelf” products), (f) customer, distribution, marketing or supply agreements to which any Borrower is a party, in each case with respect to the preceding clauses (a), (b), (c), (d), (e) Except as set forth on Section 3.08(band (f) requiring payment of the Disclosure Schedules: more than $200,000 in any year for any Project to any one vendor, (g) partnership agreements to which any Borrower is a general partner or joint venture agreements to which any Borrower is a party, (h) third party billing arrangements to which any Borrower is a party, or (i) each Material Contract any other agreements or instruments to which any Borrower is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Companya party, and the breach, nonperformance or cancellation of which, or the failure of which to Sellers’ Knowledgerenew, each other party thereto, subject could reasonably be expected to the Bankruptcy Exception, and immediately following the have a Material Adverse Effect. The consummation of the transactions contemplated hereby, shall continue by the Financing Documents and the other Operative Documents will not give rise to a right of termination in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect favor of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties other than any Credit Party or any LiveArea Company an intention to terminate Affiliate of any Credit Party), except for such Material Contract (x) prior Contracts the noncompliance with which would not reasonably be expected to its stated termination date, in the case of have a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated termAdverse Effect. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.SAN_FRANCISCO/#11685.11
Appears in 1 contract
Sources: Credit and Security Agreement (Skilled Healthcare Group, Inc.)
Material Contracts. (a) Section 3.08(a) Schedule 3.11 of the Seller Disclosure Schedules lists each Letter sets forth as of the date hereof a list of the following contracts Contracts that relate directly and other agreements of predominantly to the LiveArea Business to which a Seller Entity or a Conveyed Entity is a party (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):), materially correct and complete copies of which Seller has made available to Purchaser prior to the Closing:
(i) each agreement of a LiveArea Company involving aggregate consideration Equipment Lease which entails annual rental payments in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts;
(ii) all agreements that relate to (A) the sale of any of the LiveArea Companies’ assets, other than in the ordinary course of business 250,000 per annum or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 1,000,000 in the aggregate;
(iiiii) all agreements that relate to each Contract for goods and/or services between Seller and/or any of its Affiliates (other than the acquisition of any business, a material amount of stock or assets of any other Person Business) or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
officers, directors or employees of Seller and/or any of its Affiliates (v) all currently effective agreements between or among a LiveArea Company other than the Business), on the one hand hand, and Parent or any Affiliate of Parent (other than a LiveArea Company) the Business, on the other hand;
(iii) each mortgage, indenture, security agreement, pledge, note, loan agreement or guarantee (excluding items set forth in Schedule 3.13(a) of the Seller Disclosure Letter) in respect of Indebtedness in excess of $500,000;
(iv) each customer Contract expected to result in payment to the applicable Asset Selling Entity or Conveyed Entity in excess of $5,000,000 per annum or $15,000,000 in the aggregate over the last three years;
(v) each outstanding Contract with vendors of the Business expected to result in payment by the applicable Asset Selling Entity or Conveyed Entity, respectively, in excess of $5,000,000 per annum or $15,000,000 in the aggregate over the last three years;
(vi) all currently effective collective bargaining agreements each Contract materially limiting the ability of the applicable (A) Asset Selling Entity (or agreements following the Closing, the Business) to compete with any labor organization, union Person in connection with such entity’s conduct of the Business or association (B) Conveyed Entity to which a LiveArea Company is a partycompete with any Person in connection with such entity’s conduct of the Business;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;material joint venture Contract; and
(viii) all existing Benefit Plans;
each Contract pursuant to which Seller or its Affiliates (ixA) all licenses any Intellectual Property material to the Business as currently effective agreements requiring severance payments in excess conducted (excluding licenses for commercial off the shelf computer software that are generally available which have an aggregate acquisition cost of $100,000 in the aggregate to Employees;
(xor less) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with grants a license to use any Person, Transferred Intellectual Property material to the Business (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into in the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000business).
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Tyco Electronics Ltd.)
Material Contracts. (a) Section 3.08(aSchedule 3.16(a) of the Disclosure Schedules lists each sets forth a list of all Contracts that any Acquired Company is party to as of the date hereof in the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):categories:
(i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contractscollective bargaining agreements;
(ii) all agreements that relate to (A) Contracts for the sale employment or engagement of any of the LiveArea Companies’ assetsofficer, individual employee or other than in the ordinary course of business person on a full-time or (B) capital expenditures or development costs or expenses, consulting basis providing for consideration base salary compensation in excess of $500,000 200,000 per annum, except for offer letters for at-will employees that do not provide for severance in excess of the aggregateamounts due under the Acquired Companies' severance practices;
(iii) all agreements Contracts between any of the Acquired Companies and any of their officers, individual employees or other persons that relate to provide for the acquisition payment of any businesscash or other compensation or benefit as a result of the consummation of the Transactions, a material amount of stock or assets including any Contract that restricts the ability of any other Person of the Acquired Companies to terminate the employment or engagement of such person or such Contract at any real property time for any lawful reason or for no reason without liability (whether by merger, sale of stock, sale of assets or otherwiseincluding severance obligations);
(iv) agreements or indentures relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien, except for agreements Permitted Liens, other than (A) borrowing under the Company's current revolving credit facility and (B) relating to trade receivablesthe borrowing of money or mortgaging, all agreements relating to Indebtedness (including, without limitation, guarantees) pledging or otherwise placing a lien involving an amount of the LiveArea Companiesless than $500,000;
(v) all currently effective agreements between guaranties of any obligation for borrowed money, letter of credit arrangements or among other material guaranty, or granting a LiveArea Lien on any assets of any Acquired Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other handPermitted Liens);
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving Contracts establishing any joint venture, partnership, strategic alliance, shareholders’ agreementlicensing arrangement or sharing of profits or proprietary information;
(vii) Contracts granting any rights of first refusal, joint development rights of first negotiation, first look, last look or other similar arrangementrights or preferences to any Person;
(viii) Contracts with any Governmental Authority;
(ix) Contracts that contain a "most favored nation" clause;
(x) leases or agreements under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $250,000;
(xi) Leases or agreements under which it is sublessor of or permits any third party to hold or operate any property, real or personal, for which the annual rental exceeds $250,000;
(xii) Leases or agreements under which it is lessee of any Leased Real Property for which the annual rental exceeds $250,000;
(xiii) Contracts or groups of related Contracts with the same party for the sale of products or services by the Acquired Companies representing twenty-five percent (25%) of the Acquired Companies' consolidated ▇▇▇▇▇▇▇▇ during the trailing 12-month period ending on the date of the Latest Balance Sheet;
(xiv) Contracts or groups of related Contracts with the same entity party for the purchase of products or services providing for payments by the Acquired Companies in excess of $250,000, on a consolidated basis, during the trailing 12-month period ending on the date of the Latest Balance Sheet;
(xv) Contracts relating to any material business acquisition or divestiture by any Acquired Company within the two (2)-year period ended on the date of this Agreement;
(xvi) other than this Agreement, Contracts for the sale, transfer or acquisition of any material asset, equity interest or business of any Acquired Company (other than those providing for sales, transfers or acquisitions of inventory or obsolete assets in the ordinary course of business) or for the grant to any Person of any preferential rights to purchase any asset, equity interest or business of any Acquired Company, in each case, under which there are material outstanding obligations or any obligations in respect of deferred purchase price or "earn-outs", in each case, of any Acquired Company;
(xvii) all agreements from Contracts involving the prior three (3) years involving any resolution or settlement of any actual material Action or threatened litigationmaterial Action;
(xviii) Contracts providing for the grant of any license, arbitrationright, claim permission or non-assertion by (A) any third Person to any of the Acquired Companies with respect to any Intellectual Property (other than licenses to Software that is generally commercially available on standard terms for an aggregate fee, royalty or other dispute whichconsideration of no more than $250,000), including any Contracts required to be listed on Schedule 3.13(g) of the Disclosure Schedules and (B) any of the Acquired Companies to any third Person with respect to any Acquired Company-Owned IP or any Licensed IP exclusively licensed to any of the Acquired Companies (excluding non-exclusive licenses granted to customers, resellers and suppliers (including originators and investors) of the Acquired Companies in the ordinary course of business);
(xix) Contracts providing for the consent or release relating to any material Acquired Company-Owned IP;
(xx) Contracts providing for the invention, creation, conception or other development of any Intellectual Property (A) by any of the Acquired Companies for any third Person, (B) by any third Person for any of the Acquired Companies, other than any Personnel IP Contracts, or any Contracts involving development of Intellectual Property by any third party that is not material to the business of the Acquired Companies, or (C) jointly by any of the Acquired Companies and any third Person;
(xxi) Contracts providing for the assignment or transfer of any ownership interest in or to any Acquired Company-Owned IP or any other material Intellectual Property by (A) any of the Acquired Companies to any Person or (B) any third Person to any of the Acquired Companies, other than any Personnel IP Contracts; and
(xxii) Contracts that contain covenants that restrict or limit, in any material respect, the ability of the Acquired Companies to freely engage in their respective businesses, compete with any Person in any geographic region, or solicit or hire any individual, except for any nondisclosure agreements or non-solicit or no-hire provisions in the Acquired Companies' customer contracts, in each case entered into in the ordinary course of business.
(b) Each Contract set forth on Schedule 3.16(a) of the Disclosure Schedules is valid and binding on an Acquired Company to the extent such Acquired Company or such Subsidiary is a party thereto, as applicable, and to the Knowledge of the Acquired Companies, each other party thereto, and is in full force and effect and enforceable in accordance with its terms (subject to the Bankruptcy and Equity Exception), except where the failure to be valid, binding, enforceable and in full force and effect would not be, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for material to the Acquired Companies, taken as a whole. The Acquired Companies and, to the Knowledge of the Acquired Companies, any equitable remedy or subject any LiveArea Company or any of its properties or assets other party thereto, have performed all obligations required to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or be performed by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as them under each Contract set forth on Section 3.08(bSchedule 3.16(a) of the Disclosure Schedules: (i) each Material Contract is valid and binding on , except where such noncompliance would not be, individually or in the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Companyaggregate, and to Sellers’ Knowledge, each other party thereto, subject material to the Bankruptcy ExceptionAcquired Companies, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in taken as a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Businesswhole.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a3.6(a) of the Company Disclosure Schedules lists each Schedule sets forth a correct and complete list of the following contracts and other agreements Contracts to which the Company or any Company Subsidiary is a party or by which any of the LiveArea Business them is bound (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):
(i) each agreement any Contract under which the Company or any Company Subsidiary: (A) sold or purchased (or agreed to sell or purchase) products or services pursuant to which the aggregate of a LiveArea payments due to or from the Company involving or any of the Company Subsidiaries, respectively, in the one (1) year period ending on the date of this Agreement, was equal to or exceeded $1,000,000; or (B) of which the Company reasonably anticipates that it or any of the Company Subsidiaries will be selling or purchasing products or services during the one (1) year period after the date of this Agreement, in which the aggregate consideration in excess payments due to or from the Company or any of the Company Subsidiaries, respectively, for such products or services are reasonably expected to equal or exceed $500,000 during FY 2020 and the current calendar year and all shared customer contracts1,000,000;
(ii) all agreements that relate any Contract for the employment or separation of any officer, director or management-level employee or consultant earning more than $100,000 per year in base salary in a full-time, part-time, consulting or other basis of the Company or any Company Subsidiary;
(iii) any Contract under which the Company or any Company Subsidiary has agreed to indemnify any third Person with respect to, or to otherwise share, any of the Liabilities of any Person for Taxes (other than the Company or any Company Subsidiary), other than Contracts with suppliers or customers in the ordinary course in which no payments on account of Liabilities for Taxes have been made or incurred or are reasonably expected to be made or incurred;
(iv) any Contract involving a commitment by the Company or any Company Subsidiary to (A) make a capital expenditure (1) with a term of more than three (3) years from the sale of date hereof or (2) with respect to which the expenditures are expected to exceed $50,000 in any of the LiveArea Companies’ assets, other than in the ordinary course of business fiscal year or (B) to purchase any capital expenditures asset for at least $250,000;
(v) any Contract that contains a covenant not to compete that limits or development costs will limit the Company or expensesany of the Company Subsidiaries from engaging in the Business (as currently conducted) or competing with any person in any geographic market;
(vi) any lease or similar agreement pursuant to which: (A) the Company or any Company Subsidiary is the lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any Person (other than the Company or any Company Subsidiary) for an annual rent in excess of $100,000; (B) the Company or any Company Subsidiary is the lessor of, or makes available for use by any Person (other than the Company or any Company Subsidiary), any tangible personal property owned by it for an annual rent in excess of $100,000; or (C) the Company or any Company Subsidiary is the lessee of, or holds or uses, any real property owned by any Person (other than the Company or any Company Subsidiary) for an annual rent in excess of $250,000;
(vii) any Contract establishing or agreeing to establish a partnership or joint venture;
(viii) any asset purchase agreements, stock purchase agreements, and other acquisition or divestiture agreements, including any Contracts relating to the sale, lease or disposal of any properties or assets of the Company or any Company Subsidiary, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plansindividually;
(ix) all currently effective agreements requiring severance any Contract relating to Company Indebtedness of the Company or any Company Subsidiary in excess of $500,000;
(x) any Contract under which the Company or any Company Subsidiary has directly or indirectly guaranteed any Liabilities of any Person (other than the Company or any Company Subsidiary) in excess of $100,000;
(xi) any Contract with any Company Stockholder or any current officer or director or Affiliate of the Company or any Company Subsidiary;
(xii) any Contract with any labor union or association representing any employee of the Company or any Company Subsidiary;
(xiii) any Contract containing “take or pay” provisions that obligate the Company or any Company Subsidiary to make material minimum periodic payments or material payment commitments to the carrier service providers of the Company or any Company Subsidiary for telecommunications bandwidth or capacity;
(xiv) any Contract providing for the settlement of any material claim against the Company or any Company Subsidiary pursuant to which the Company or any Company Subsidiary has any existing material obligations;
(xv) any Contract providing for a license by the Company or any Company Subsidiary to a third party of Intellectual Property and which provide for payments to the Company or any Company Subsidiary in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contractfiscal year;
(xvi) all currently effective agreements involving any joint ventureContract relating to: (A) the sale, partnershipoutbound license or outbound lease by the Company or any Company Subsidiary of any indefeasible rights of use of capacity infrastructure or peering arrangements; or (B) the purchase, strategic alliance, shareholders’ agreement, joint development inbound license or similar arrangementinbound lease by the Company or any Company Subsidiary of any indefeasible rights of use of capacity infrastructure or peering arrangements;
(xvii) all agreements from any Contract that would prohibit or is otherwise reasonably likely to materially delay the prior three consummation of the Transactions;
(3xviii) years involving any resolution or settlement of any actual or threatened litigationother Contracts that are material to the Company and the Company Subsidiaries, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrancestaken as a whole; and
(xviiixix) all currently effective agreements any commitments or Contracts to which any LiveArea Company is a party or by which enter into any of its assets or business is bound that involve amounts exceeding $500,000the foregoing.
(b) Except as set forth on in Section 3.08(b3.6(b) of the Company Disclosure SchedulesSchedule, all Material Contracts are legally valid and binding obligations of the Company or the applicable Company Subsidiary and, to the Knowledge of the Company, are legally valid and binding obligations of the other parties thereto, subject in each case to the Equitable Exceptions, and each Material Contract is in full force and effect as of the date hereof. Except as set forth in Section 3.6(b) of the Company Disclosure Schedule: (i) each Material Contract is valid and binding on neither the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to nor the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area applicable Company Subsidiary is in default or in material breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect ofor default under, any Material Contract; and (iiiii) to Sellers’ the Company’s Knowledge, each no other party to each any Material Contract is in material breach thereof or default thereunder. To the Company’s Knowledge, none of the Company or any Company Subsidiary has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in received notice of any material respect of breach of, or default under (or any such Material Contract; and (iv) no event has occurred condition which, with the passage of time or the giving of notice or bothnotice, would result in cause a material breach of, or default in any material respect by any LiveArea Company orunder), to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty Correct and complete copies of all Material Contracts were made available by the Company to the Purchaser prior to the date of this Agreement in the Virtual Data Room.
(c) Section 3.6(c) of the Company Disclosure Schedule lists each material interconnection agreement, material line-sharing agreement, material line-splitting agreement and other material Contracts between the Company or any Company Subsidiary, on the one hand, and various incumbent local exchange carriers, on the other hand (collectively, the “ILEC Agreements”). Each ILEC Agreement constitutes a legally valid and binding obligation of the Company and/or each Company Subsidiary that is a party thereto, as applicable, and, to the Knowledge of the Company, each other party thereto, enforceable against the Company and/or each Company Subsidiary that is a party thereto in accordance with its terms, subject in each case to the Equitable Exceptions. Each ILEC Agreement that is subject to Section 252 of the Communications Act of 1934, as amended, has been approved by the applicable State PUC. The Company and/or any Company Subsidiary, as applicable, that is a party to an ILEC Agreement has performed all obligations required to be performed by it under such ILEC Agreement, except, in each case, as would not have, individually or in the aggregate, a Company Material Contract (excluding statements Adverse Effect. To the Knowledge of work) the Company, none of the Company or any Company Subsidiary has provided received written notice of any material breach of, or default under (or any condition which, with the passage of time or the giving of notice, would cause a material breach of, or default under), any ILEC Agreement. Correct and complete copies of all ILEC Agreements were made available by the Company to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) Purchaser prior to its stated termination date, the date of this Agreement in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessVirtual Data Room.
Appears in 1 contract
Sources: Merger Agreement (Earthlink Inc)
Material Contracts. (a) Except as set forth on Section 3.08(a6.12(a) of the Chicago Disclosure Schedules lists each Schedule and except for Government Contracts, which are covered in Section 6.29, as of the date of this Agreement, neither Chicago nor any of its Subsidiaries are parties to or otherwise bound by or subject to (Contracts of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectivelytypes, the “Chicago Material Contracts”):
(i) each agreement contracts for the purchase of products or for the receipt of services, the performance of which will extend over a LiveArea Company involving aggregate consideration period of one (1) year or more and which involved payments by Chicago or any of its Subsidiaries in excess of $500,000 100,000,000 in the aggregate during FY 2020 and the current calendar year and all shared customer contractsended December 31, 2015;
(ii) all contracts for the furnishing of products or services by Chicago or any of its Subsidiaries, the performance of which will extend over a period of one (1) year or more and which involved payments to Chicago or any of its Subsidiaries in excess of $100,000,000 in the aggregate during the calendar year ended December 31, 2015;
(iii) contracts concerning the establishment or operation of any material partnership, joint venture or limited liability company (other than any such Contract between Chicago or any of its Subsidiaries and another Subsidiary of Chicago);
(iv) material lease agreements that relate to for parcels of Chicago Leased Real Property existing at the date of this Agreement;
(v) contracts containing (A) a covenant materially restricting the sale ability of Chicago or any of its Subsidiaries, in each case, to engage in any line of business in any geographic area or to compete with any Person, to market any product or to solicit customers, (B) a provision granting the LiveArea Companies’ assetsother party “most favored nation” status or equivalent preferential pricing terms or (C) a provision granting the other party exclusivity or similar rights, other than teaming or similar agreements entered into in the ordinary course of business where the restrictions apply solely to the Contract or pursuit that is the subject matter of the teaming or similar agreement (Band any extensions or recompetes in respect thereof) capital expenditures and other than as a result of an OCI clause; or
(vi) indentures, credit agreements, loan agreements and similar instruments pursuant to which Chicago or development costs any of its Subsidiaries has or expenses, will incur or assume any indebtedness for consideration borrowed money or has or will guarantee or otherwise become liable for any indebtedness of any other Person for borrowed money in excess of $500,000 in the aggregate;
(iii) all 10,000,000, other than any indentures, credit agreements, loan agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements similar instruments solely between or among a LiveArea Company on the one hand any Chicago and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000Subsidiaries.
(b) Except as set forth Chicago has made available to Houston true, complete and correct copies of each Chicago Material Contract in effect on Section 3.08(b) the date of the Disclosure Schedules: (i) each this Agreement. Each Chicago Material Contract is valid and binding on Chicago or its Subsidiaries, as applicable, and, to the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Companyknowledge of Chicago, the counterparty thereto, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue is in full force and effect; , subject to the effect of any applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar applicable Laws relating to or affecting creditors’ rights generally and subject to the effect of general principles of equity (ii) no Live Area Company regardless of whether considered in a proceeding at law or in equity). Neither Chicago nor any of its Subsidiaries is in default or in material breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any or material respect ofdefault under, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Chicago Material Contract has performed all obligations in all material respects required to be performed by which it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Businessparty.
Appears in 1 contract
Material Contracts. (ai) Section 3.08(a) of the Disclosure Schedules Schedule 4.12 lists each of the following contracts and other agreements of Contracts to which the LiveArea Business Seller is a party or may be bound (together with all leases listed in Section 3.09(f) of the Disclosure Scheduleseach, a “Material Contract” and, collectively, the “Material Contracts”):
(ia) each agreement written notes, debentures, guarantees, loans, credit or financing agreements or instruments, or other written Contracts for indebtedness, including any agreements or commitments for future loans, credit or financing other than any of a LiveArea Company involving aggregate consideration in excess the foregoing relating to any intercompany indebtedness of $500,000 during FY 2020 and the current calendar year and all shared customer contractsSeller;
(iib) all agreements that relate any written Contract for or relating to (A) the sale employment, severance or retention of any officer, employee or consultant of the LiveArea Companies’ assets, other than in the ordinary course of business Seller or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale type of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements written Contract with any labor organizationof its officers, union employees or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for consultants, involving individual annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employeesand which may not be terminated at will, or by giving notice of 30 days or less, without cost or penalty;
(xc) all agreements involving written leases, rental or relating occupancy agreements, installment and conditional sale agreements, and other written Contracts affecting the ownership of, leasing of, title to an outstanding loan to, or investment other interest in, any Persontangible personal property or real property involving individual annual payments in excess of $250,000;
(xid) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements written Contract involving any joint venture, partnership, strategic alliance, shareholders’ agreementco-marketing, joint development or similar arrangementarrangement involving a share of profits, losses, costs or liabilities;
(xviie) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim written license agreement or other dispute whichwritten Contract relating to Intellectual Property under which the Seller pays or receives amounts in excess of $250,000 annually;
(f) written Contracts explicitly requiring payments after the date hereof in an amount in excess of $250,000;
(g) any written Contract to provide commercial printing services to third parties, including to media publishers and to commercial paper product designers, involving payments to the Seller in excess of $250,000;
(h) written Contracts between the Seller, on the one hand, and any director, officer or Affiliate of the Seller, on the other hand (other than employment arrangements entered into in the ordinary course of business);
(i) written Contracts containing covenants presently limiting the ability of the Seller to compete with any Person in any line of business or in any area or territory;
(j) any written advertising Contract which generated revenues in an amount in excess of $250,000 during the calendar year ended December 31, 2005; and
(k) any oral Contracts covering any of the matters listed and described above involving an aggregate annual amount in excess of $100,000 which are not terminable at will.
(ii) True, correct and complete copies of each Material Contract have been made available to Buyer. Except as set forth on Schedule 4.12, each Material Contract is in full force and effect and represents a legally valid and binding obligation of the Seller which is a party thereto. Except for such exceptions as could not, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets reasonably be expected to any Encumbrances; and
have a Material Adverse Effect, (xviiiA) all currently effective agreements the Seller (and to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) the knowledge of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ KnowledgeSeller, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such each of the Material Contract Contracts to which it is a party and (B) the Seller (and to the knowledge of the Seller, each other party thereto) is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or violation of, or default in under, any material respect by of the Material Contracts to which it is a party, nor has the Seller received any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties that it has breached or violated any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received Material Contracts to which it is a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Businessparty.
Appears in 1 contract
Material Contracts. (a) Section 3.08(aSchedule 4.21(a) sets forth a list of the Disclosure Schedules lists each of the following contracts and other agreements contracts, agreements, binding bids, binding proposals, or binding quotations to which, as of the LiveArea Business (together with all leases listed in Section 3.09(f) date hereof, each of the Disclosure SchedulesCompany and its Subsidiaries is a party or signatory or pursuant to which the Company or any of its Subsidiaries has third party rights (except with respect to the Leases (the "Leases"), collectivelywhich are set forth on Schedule 4.10, the “Material Contracts”):
which are hereby incorporated by reference into Schedule 4.21(a) and made a part thereof): (i) each agreement contract or series of contracts resulting in a LiveArea Company commitment or potential commitment for expenditure or other obligation or potential obligation, or which provides for the receipt or potential receipt, involving aggregate consideration in excess of One Hundred Thousand Dollars ($500,000 during FY 2020 and 100,000) in any instance, or series of related contracts that in the current calendar year and all shared customer contracts;
aggregate give rise to rights or obligations exceeding such amount other than contracts with Governmental Authorities referred to in clause (ii); (ii) Governmental Contracts resulting in a commitment or potential commitment for expenditure or other obligations or potential obligations, or which provide for the receipt or potential receipt, involving in excess of One Hundred Thousand Dollars ($100,000) in any instance, or series of related contracts that in the aggregate give rise to rights or obligations exceeding such amount; (iii) employment and retention agreements, collective bargaining agreements and any amendments or modifications thereof and union recognition agreements; (iv) indentures, mortgages, promissory notes, loan agreements, guarantees, capital leases or other agreements or commitments for the borrowing or lending of money or Encumbrances of assets involving more than Ten Thousand Dollars ($10,000) in each instance; (v) agreements which restrict the Company or its Subsidiaries from engaging in any line of business or from competing with any other Person; (vi) warranties made with respect to products manufactured, packaged, distributed or sold by the Company or its Subsidiaries; (vii) all agreements that relate to (A) or arrangements by which the Company or any of its Subsidiaries sold or divested itself, directly or through a Subsidiary, of any material portion of its assets, including the sale of all or substantially all of the capital stock or other ownership interests of any of the LiveArea Companies’ assetsits Subsidiaries ("Divestiture Agreements"); (viii) any acquisition, other than in the ordinary course of business partnership, shareholder, joint venture, teaming or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining similar agreements or agreements with any labor organization, union or association arrangements to which a LiveArea the Company is a party;; (ix) 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; (x) any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees; (xi) any agreement under which the consequences of a default or termination could have a Material Adverse Effect on the Company and its Subsidiaries taken as a whole; (xii) each independent sales representative or distribution agreement, supply agreement or similar agreement relating to or providing for the marketing or manufacturing of the Company's products; (xiii) each consulting, development, joint development, research and development or similar agreement relating to development of the Company's or its Subsidiaries' products or Intellectual Property Rights and each agreement under which the Company or its Subsidiaries has granted or obtained a license to Intellectual Property Rights, other than commercial software licenses; (xiv) all Plans; (xv) all agreements with any "disqualified individual" (as defined in Section 280G(c) of the Code) which contains any severance or termination pay liabilities which would result in a disallowance of the deduction for any "excess parachute payment" (as defined in Section 280G(b)(l) of the Code) under Section 280G of the Code; and (xvi) every agreement between the Company or any of its Subsidiaries and any of their officers, directors or more than 5% shareholders, or any entity in which any of their officers, directors or more than 5% shareholders has a greater than 2% equity interest (collectively, and together with the Leases and all other agreements required to be disclosed on any Disclosure Schedule to this Agreement, the "Company Material Contracts"). The Company has previously made available to Purchaser true, complete and correct copies of each of the Company Material Contracts.
(viib) all currently effective employment None of the Company Material Contracts was entered into outside the Ordinary Course of Business of the Company or consulting agreements providing for annual salaries any of its Subsidiaries.
(c) All such Company Material Contracts (other than potential commitments and obligations) are valid and binding upon the Company and its Subsidiaries and are in full force and effect and enforceable against the Company and its Subsidiaries in accordance with their respective terms; subject to (i) applicable bankruptcy, reorganization, insolvency, moratorium, and similar laws affecting the enforcement of creditors' rights generally; and (ii) the effect of general principles of equity (including specific performance) regardless of whether considered in a proceeding in equity or payments at law.
(d) Except as set forth in excess Schedule 4.21(d), (i) no consent of $350,000any Person is needed in order that each such Company Material Contract shall continue in full force and effect in accordance with its terms without penalty, including target level awards under acceleration, or rights of early termination by reason of the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result consummation of the transactions contemplated by this Agreement, and all agreements with each staffing firm (ii) neither the Company nor any of its Subsidiaries has received notice that it is in violation of, breach of, or agency engaged default under any, or is in violation of, breach of, or default under any, such Company Material Contract, nor to the provision of temporary workers Company's Knowledge is any other party to a LiveArea Company;any such Company Material Contract in violation of, material breach of, or default under any such Company Material Contract.
(viiie) Each of the Company and its Subsidiaries has, with respect to all existing Benefit Plans;
Governmental Contracts that are Company Material Contracts: (ixi) complied in all currently effective agreements requiring severance payments in excess of $100,000 in material respects with all certifications and representations that the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties Subsidiaries have executed, acknowledged or assets set forth with respect to any Encumbrances; and
each such Company Material Contract, (xviiiii) complied in all currently effective agreements to which any LiveArea Company is a party material respects with all clauses, provisions and requirements incorporated expressly, by reference or by which any operation of its assets law in each such Company Material Contract, and (iii) submitted certifications and representations with respect to each such Company Material Contract that were accurate, current and complete when submitted in all material respects, and were properly updated to the extent required by Applicable Law or business is bound that involve amounts exceeding $500,000the applicable Company Material Contract.
(bf) Except as set forth on Section 3.08(b) Each of the Disclosure SchedulesCompany and its Subsidiaries has not, with respect to any Governmental Contracts that are Company Material Contracts: (i) each received notice that the Company or any of its Subsidiaries has breached or violated any Applicable Law, certification, representation, clause, provision, or requirement with respect to any such Company Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea CompanyContract, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) received any show cause notice or cure notice or default termination with respect to any such Company Material Contract, (iii) received any formal or informal determination that costs incurred under any such Company Material Contracts have been questioned or disallowed, (iv) received any adverse decision from a contracting officer relating to any such Company Material Contracts (other than potential commitments or obligations), or (v) received any notice that monies due under any such Company Material Contracts are or may be subject to withholding or setoff.
(g) With respect to any Governmental Contracts that are Company Material Contracts, there are no Live Area Company is in default or in breach in pending claims (other than accounts receivable) against any material respect of, Governmental Authority or, to Sellers’ the Knowledge of the Company, threatened claims against any prime contractor, subcontractor or vendor arising out of or relating to any such Governmental Contract.
(h) Each of the Company and its Subsidiaries has not received any notice that the Company or any of its Subsidiaries is currently debarred or suspended from doing business with any Governmental Authority, nor has the Company or any of its Subsidiaries received any notice that the Company or any of its Subsidiaries has been declared ineligible for doing business with any Governmental Authority. Neither the Company nor any of its Subsidiaries has received any notice, and the Company has no Knowledge, alleged that a Governmental Authority intends to be in breach in institute any material debarment, suspension or ineligibility proceedings against the Company or any of its Subsidiaries.
(i) The Company or any of its Subsidiaries has not received any negative determination of responsibility by any Governmental Authority or government prime contractor with respect ofto the Company or any of its Subsidiaries. The Company does not have Knowledge of any reasonably likely negative determination of responsibility by any Governmental Authority or government prime contractor with respect to the Company or any of its Subsidiaries.
(j) The Company and its Subsidiaries possess all necessary security clearances and permits for the execution of their obligations with respect to any Governmental Contract or bid, proposal or quotation submitted to any Material ContractGovernmental Authority or government prime contractor. The Company and its Subsidiaries have never been denied a facility security clearance and none of their employees has been denied a personal clearance while employed by the Company and its Subsidiaries.
(k) The Company has no Knowledge of any irregularities, misstatements or omissions relating to any of the Governmental Contracts or any of its bids, quotations or proposals, past or present, that have led to or have a reasonable likelihood of leading to (A) any administrative, civil or criminal investigation or indictment of the Company or its Subsidiaries; (iiiB) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default the formal questioning or in breach in any material respect disallowance of any costs submitted for payment by the Company or its Subsidiaries; (C) the recoupment of any payments previously made to the Company or its Subsidiaries; or (D) the assessment of any penalties or damages of any kind against the Company or its Subsidiaries, arising out of such irregularities, misstatements or omissions that have or would be reasonably expected to have a Material Adverse Effect on the Company and its Subsidiaries taken as a whole.
(l) There exist (A) no outstanding claims against the Company or its Subsidiaries either by a Governmental Authority or by any prime contractor, subcontractor, vendor or other third party arising under or relating to any Governmental Contract; and (ivB) to the Knowledge of the Company, no event facts upon which such a claim reasonably may be based in the future.
(m) Each of the Company and its Subsidiaries is not undergoing and has occurred whichnot undergone any audit, with and the passage Company has no Knowledge of time any basis that would reasonably be expected to lead to audits in the future, arising under or the giving of notice or bothrelating to any Governmental Contract, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true customary audits and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Businessreviews.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a) of the Disclosure Schedules lists each of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):
Except (i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and for agreements entered into after the current calendar year and all shared customer contracts;
date hereof, (ii) all agreements that relate to (A) the sale of any of the LiveArea Companies’ assets, other than for open purchase orders with customers entered into in the ordinary course of business consistent with past practices or (Biii) capital expenditures as set forth on Schedule 5.10, neither Seller nor any of the Acquired Companies is a party to or development costs bound by (the following being referred to as the "Material Contracts"):
(a) any contract, agreement or expensesother arrangement for the purchase of Inventories, or other personal property with any supplier or for consideration the furnishing of services to the Business the terms of which provide for financial commitments in excess of $500,000 in the aggregate250,000;
(iiib) all agreements that relate to any contract, agreement and other arrangement for the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets Inventories or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements personal property with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments firm commitments in excess of $350,000250,000 and a duration of more than six months from the date hereof or any contract, including target level awards under agreement or other arrangement for the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees furnishing of services by Parent or PFS as the Business with a result duration of more than six months from the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Companydate hereof;
(viiic) all existing Benefit Plans;
(ix) all currently effective any broker, distributor, dealer, manufacturer's representative, franchise or agency agreements requiring severance payments primarily relating to the Business the terms of which provide for financial commitments in excess of $100,000 in the aggregate to Employees250,000;
(xd) all any contracts and agreements involving or relating to indebtedness for borrowed money, factoring arrangements, sale and leaseback transactions, deferred purchase price of property and other similar financing transactions primarily relating to the Business with respect to which Seller or any of the Acquired Companies is an outstanding loan to, obligor in excess of $250,000 or investment in, which are secured by any PersonConveyed Assets;
(xie) all currently effective any agreements granting entered into since January 1, 2003, providing for the acquisition or evidencing an Encumbrance on any property or asset disposition of any LiveArea CompanyConveyed Assets and having an aggregate value in excess of $250,000, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging sale of Inventories in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not or the primary purpose sale of such contractobsolete equipment;
(xvif) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development leases pursuant to which Seller or similar arrangementany of the Acquired Companies leases any real property primarily used by the Business;
(xviig) all any consulting, employment, severance, termination, change of control, retention or separation agreements from primarily relating to the prior three Business ;
(3h) years involving any resolution material technology, license, product or settlement of process development agreement or joint venture agreement primarily relating to the Business other than non-disclosure agreements to which Seller is a party;
(i) any actual or threatened litigation, arbitration, claim or other dispute which, individually or in agreement relating primarily to the aggregate, involve amounts exceeding $250,000 or Business pursuant to which otherwise provide for any equitable remedy or subject any LiveArea Company Seller or any of its properties the Acquired Companies has agreed not to compete with any Person or assets to engage in any Encumbrancesactivity or business, or pursuant to which any material benefit is required to be given or lost without the receipt of fair value by Seller or any such Acquired Company, or pursuant to which Seller or any of the Acquired Companies is restricted in any material respect in the development, marketing, pricing or distribution of the products or services of the Business;
(j) any agreements, arrangements or understandings with any Affiliate of Seller primarily related to the Business; and
(xviiik) all currently effective any agreements to settle, resolve, compromise or otherwise address any claim of infringement of any Intellectual Property right of a third party, which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of agreements primarily relate to the Disclosure Schedules: (i) each Business. Each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue is in full force and effect; (ii) no Live Area Company is effect and enforceable against Seller or an Acquired Company, as the case may be, and to the Knowledge of Seller, the other parties thereto, in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect accordance with the terms of any such Material Contract; , subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and (iv) similar laws of general applicability relating to or affecting creditors' rights and to general equity principles. Except as set forth in Schedule 5.10, there is no default or claim of default under any Material Contract and, to the Knowledge of Seller, no event has occurred whichthat, with the passage of time or the giving of notice or both, would result in constitute a breach default by Seller, an Acquired Company or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any other party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to , or would permit modification, acceleration or termination of any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties Contract, or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, result in the case creation of a Material Contract with a stated term Lien on any of the Conveyed Assets, other than Permitted Encumbrances, and other than such defaults, claims or (y) within one year following the Closing Dateevents which would not, individually or in the case of aggregate, have a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessAdverse Effect.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a4.16(a) of the Company Disclosure Schedules lists each Schedule lists, as of the date of this Agreement, the following types of contracts and other agreements to which the Company is a party, excluding for this purpose, any orders to purchase goods or services of the LiveArea Business Company, in an amount not to exceed $50,000, evidenced on a form purchase order submitted by customers (together with all leases listed such contracts and agreements as are required to be set forth in Section 3.09(f4.16(a) of the Company Disclosure SchedulesSchedule, collectivelyexcluding any Plan or any agreement or contract listed on Section 4.10(a) of the Company Disclosure Schedule, being the “Material Contracts”):
(i) each contract and agreement with consideration paid or payable to the Company of a LiveArea Company involving aggregate consideration more than $250,000, in excess of $500,000 during FY 2020 the aggregate, over any 12-month period, excluding Lease Documents and the current calendar year and all shared customer contracts;
(ii) all agreements that relate to (A) the sale of any of the LiveArea Companies’ assets, other than at-will offer letters entered in the ordinary course of business and consistent with past practice that are terminable at-will without liability or notice (Bexcept notice as may be required by applicable Law);
(ii) capital each contract and agreement with Suppliers to the Company, including those relating to the design, development, manufacture or sale of Products of the Company for expenditures paid or development costs or expensespayable by the Company of more than $250,000, for consideration in excess of $500,000 in the aggregate, over any 12-month period, excluding Lease Documents;
(iii) all broker, distributor, dealer, manufacturer’s representative, franchise and agency contracts and agreements to which the Company is a party that are material to the business of the Company;
(iv) all contracts or agreements involving the payment of royalties or other amounts calculated based upon the revenues or income of the Company or income or revenues related to any Product of the Company to which the Company is a party;
(v) all contracts and agreements evidencing indebtedness for borrowed money in an amount greater than $250,000, and any pledge agreements, security agreements or other collateral agreements in which the Company granted to any person a security interest in or lien on any of the property or assets of the Company, and all contracts or instruments guarantying the debts or other obligations of any person;
(vi) all joint development agreements and all partnership, joint venture or similar agreements;
(vii) all contracts and agreements with any Governmental Authority to which the Company is a party, other than any Company Permits or under which the Company is, directly or indirectly, providing goods, services, software, or other items to or for use by a Governmental Authority;
(viii) all contracts awarded by the Company to a third party in the performance of a contract with a Governmental Authority;
(ix) all contracts and agreements that limit, or purport to limit, the ability of the Company in any material respect to compete in any line of business or with any person or entity or in any geographic area or during any period of time, excluding customary confidentiality agreements and agreements that contain customary confidentiality or non-solicitation clauses;
(x) all contracts or arrangements that result in any person or entity holding a power of attorney from the Company that relates to the Company, or its business;
(xi) all leases or master leases of personal property reasonably likely to result in annual payments of $50,000 or more in a 12-month period;
(xii) all Lease Documents;
(xiii) all contracts and agreements pursuant to which the Company (A) receives a license to use material Company-Licensed IP, other than (I) non-exclusive licenses granted with respect to commercially available Software or information technology services on standardized terms and involving annual payments of less than $100,000 or (II) licenses granted by employees or contractors in the ordinary course of business, (III) non-disclosure agreements, or (IV) licenses to Open Source Software or (B) grants to a third party a material license to Company-Owned IP, other than non-exclusive licenses granted to (w) service providers to the extent necessary for such service providers to provide services to the Company (x) any third-party manufacturer or service provider for the purpose of providing services to or on behalf of the Company, (y) customers for the purpose of using Products sold by or on behalf of the Company or (z) non-disclosure agreements;
(xiv) all contracts and agreements that relate to the direct or indirect acquisition or disposition of any business, a material amount of stock securities or assets of any other Person or any real property business (whether by merger, sale of stock, sale of assets or otherwise);
(ivxv) except for all contracts and agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contractInterested Party Transaction;
(xvi) all currently effective contracts and agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim Action or other dispute whichwhich require payment in excess of $250,000 or impose continuing obligations on the Company, including injunctive or other non-monetary relief;
(xvii) all contracts and agreements under which the Company has agreed to purchase goods or services from a vendor, Supplier or other person on a “most favored supplier” basis;
(xviii) all contracts and agreements governing the Company’s joint ownership of Company-Owned IP, or the development of material Company-Owned IP by a third party for the benefit of the Company (excluding, for the avoidance of doubt, employee invention assignment and confidentiality agreements entered into in the ordinary course of business and on terms substantially consistent with the standard form made available to DCRC); and
(xix) all contracts, agreements and arrangements between the Company and (i) the BMW Group and any of its affiliates and/or (ii) the Ford Motor Company and any of its affiliates.
(b) (i) each Material Contract is a legal, valid and binding obligation of the Company and, to the Knowledge of the Company, the other parties thereto, and the Company is not in breach or violation of, or default under, any Material Contract nor has any Material Contract been canceled by the other party; (ii) to the Company’s Knowledge, no other party is in breach or violation of, or default under, any Material Contract; and (iii) the Company has not received any written, or to the Knowledge of the Company, oral claim of default under any such Material Contract, with respect to each of (i), (ii), (iii) except for any such conflicts, violations, breaches, defaults or other occurrences which would not be expected to result, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea in a Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Material Adverse Effect. The Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Companyhas, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required respects, furnished or made available to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A DCRC true and complete copy copies of each written all Material Contract (Contracts, including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any amendments thereto that are material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Businessin nature.
Appears in 1 contract
Sources: Business Combination Agreement (Decarbonization Plus Acquisition Corp III)
Material Contracts. (a) To Seller’s Knowledge, Schedule 7.8 sets forth all Applicable Contracts (the definition of which, when used in this Section 3.08(a7.8, shall exclude the reference to “all Contracts set forth on Schedule 7.8” therein) to which Seller (or any Affiliate of Seller) is a party of the Disclosure Schedules lists each of the following contracts and other agreements of the LiveArea Business type described below (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):
(i) each agreement any Applicable Contract that can reasonably be expected to result in aggregate payments of a LiveArea Company involving aggregate consideration in excess of (A) more than one hundred thousand dollars ($500,000 100,000) during FY 2020 and the current any calendar year commencing on or after 2012 or (B) more than fifty thousand dollars ($50,000) during the time period from July 1, 2011 through December 31, 2011, in each case, based solely on the terms thereof and all shared customer contractscurrent volumes, without regard to any expected increase in volumes or revenues;
(ii) all agreements any Applicable Contract that relate can reasonably be expected to result in aggregate revenues of (A) the sale of more than one hundred thousand dollars ($100,000) during any of the LiveArea Companies’ assets, other than in the ordinary course of business calendar year commencing on or after 2012 or (B) capital expenditures more than fifty thousand dollars ($50,000) during the time period from July 1, 2011 through December 31, 2011, in each case, based solely on the terms thereof and current volumes, without regard to any expected increase in volumes or development costs or expenses, for consideration in excess of $500,000 in the aggregaterevenues;
(iii) all agreements any Applicable Contract that relate to is a Hydrocarbon purchase and sale, transportation, gathering, processing or similar Contract under which any of the acquisition of any business, a material amount of stock Assets are dedicated or assets of any other Person that is not terminable without penalty upon ninety (90) days or any real property (whether by merger, sale of stock, sale of assets or otherwise)less notice;
(iv) except for agreements relating any Applicable Contract that constitutes a non-competition agreement or any agreement that purports to trade receivablesrestrict, all agreements relating limit or prohibit the manner in which, or the locations in which, Seller (or any of its Affiliates) conducts business with respect to Indebtedness (includingthe Assets, without limitation, guarantees) including any area of mutual interest Contracts with respect to the LiveArea CompaniesAssets;
(v) all currently effective agreements between any (A) executory Applicable Contract that constitutes a pending purchase and sale agreement, farmout or among a LiveArea Company on farm-in agreement or other Contract providing for the one hand purchase, sale or earning of any material asset included in or related to the Assets and Parent (B) any executory Applicable Contract that constitutes an exploration agreement, development agreement, drilling agreement, participation agreement, joint operating agreement, unit agreement or any Affiliate of Parent (other than a LiveArea Company) on the other handsimilar Contract;
(vi) all currently effective collective bargaining agreements any Applicable Contracts containing “tag along” or agreements with similar rights allowing a third party to participate in future sales of any labor organization, union or association to which a LiveArea Company is a partyof the Assets;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under any Contract that contains a call on production from the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;Assets; and
(viii) all existing Benefit Plans;
any Contract involving any take or pay payment, advance payment or other similar payment (ix) all currently effective agreements requiring severance payments other than royalties, overriding royalties and similar arrangements reflected in excess of $100,000 in the aggregate Exhibit A, A-1 or A-2), to Employees;
(x) all agreements involving or relating to an outstanding loan todeliver Hydrocarbons, or investment inproceeds from the sale thereof, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released attributable to the Assets at some future time without receiving payment thereof at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between after the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line time of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000delivery.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each in Schedule 7.8, all Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue Contracts are in full force and effect; (ii) no Live Area Company is in default or in breach in , except for any material respect of, or, to Sellers’ Knowledge, alleged failures to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other full force and effect that are caused by the actions or omissions of Third Parties that are party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not except for such matters that (in the aggregate) would have an immaterial effect, there exists no default under any Material Contract by Seller (or in breach in any material respect Affiliate of any such Material Contract; and (ivSeller) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Seller’s Knowledge, by any other Person that is a party thereto (other than any LiveArea Company) under any Material to such Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
Appears in 1 contract
Material Contracts. (ai) Except (x) for Contracts (including all amendments and modifications thereto) filed as exhibits to the Company Reports as of the date of this Agreement, (y) as set forth in Section 3.08(a5.01(k)(i) of the Company Disclosure Schedules lists Schedule or (z) for Contracts that are Other Material Contracts, as of the date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any Contract (a Contract described by each of the following contracts clauses of this Section 5.01(k)(i), including Contracts and other agreements of all amendments and modifications thereto filed or required to be filed as exhibits to the LiveArea Business (Company Reports, together with all leases listed in Section 3.09(f) of the Disclosure Scheduleseach Other Material Contract, collectively, the being hereinafter referred to as a “Material ContractsContract”):
(iA) each agreement that is a “material contract” (as such term is defined in Item 601(b)(10) of a LiveArea Regulation S-K of the Exchange Act);
(B) with respect to real property or personal property under which the Company involving aggregate consideration or any of its Subsidiaries is the lessee, sublessee, licensee or otherwise has rights of use or occupancy providing for payments in excess of $250,000 in any fiscal year or more than $500,000 during FY 2020 and in the current calendar year and all shared customer contractsaggregate over the term thereof (assuming the same is renewed or extended at the unilateral option of any other Person party thereto), in each case that cannot be terminated on not more than 60 days’ notice without payment by the Company or any of its Subsidiaries of any termination fee or other similar penalty;
(iiC) all agreements that relate to (A) the sale of with any customer of the LiveArea Companies’ assetsCompany, which Contract, together with all other Contracts with such customer and such customer’s affiliates, accounted for total revenues from such customer and such customer’s affiliates, in the aggregate, in excess of $15,000,000 for the fiscal year ended December 31, 2021;
(D) with any vendor/supplier of the Company, which Contract, together with all other Contracts with such vendor/supplier and such vendor/supplier’s affiliates, accounted for total payments to such vendor/supplier and such vendor/supplier’s affiliates, in the aggregate, in excess of $15,000,000 for the fiscal year ended December 31, 2021;
(E) that is an exclusive agency, dealer, franchise, sales representative, marketing or other similar exclusive Contract;
(F) with a Governmental Authority or any currently outstanding bids, proposals or other offers related to Contracts with a Governmental Authority (other than Contracts that are health plans entered into in the ordinary course of business or (B) capital expenditures or development costs or expensesbusiness), in each case providing for consideration payments in excess of $250,000 in any fiscal year or more than $500,000 in the aggregateaggregate over the term thereof;
(iiiG) all agreements that relate relating to the acquisition or disposition by the Company or any of its Subsidiaries of any business, business or a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise) (i) entered into since the Applicable Date involving consideration in excess of $2,500,000 or (ii) pursuant to which the Company or any of its Subsidiaries has any material actual, contingent or other liabilities or obligations (other than customary confidentiality and non-disclosure obligations or customary covenants to provide reasonable access to books and records) reasonably expected to be in excess of $1,000,000;
(H) that is a Collective Bargaining Agreement;
(I) that is an employment, severance, termination or consulting or other Contract with any current or former Service Provider that provides for total ongoing annual cash payments in the aggregate in excess of $250,000;
(J) entered into outside of the ordinary course of business which involves the payment or receipt of an amount in excess of $2,500,000 annually;
(K) that is a credit agreement, loan agreement, indenture, note, mortgage, security agreement, loan commitment or other Contract relating to the borrowing of Indebtedness by the Company or any of its Subsidiaries or that grants Liens over any material assets of the Company or any of its Subsidiaries (other than any agreement between the Company or any of its Subsidiaries, on the one hand, and another Subsidiary of the Company, on the other hand);
(ivL) except for agreements relating to any loan or other extension of credit made by the Company or any of its Subsidiaries (other than trade receivablesreceivables owed by customers in the ordinary course of business and any agreement between the Company or any of its Subsidiaries, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand hand, and Parent or any Affiliate another Subsidiary of Parent (other than a LiveArea the Company) , on the other hand);
(viM) all currently effective collective bargaining agreements relating to the ownership, management or agreements with control of the Company or any labor organization, union Person in which the Company or association to which a LiveArea any of its Subsidiaries owns any equity interest other than direct and indirect wholly-owned Subsidiaries of the Company is a partyor any of its Subsidiaries;
(viiN) all currently effective employment that limits (or consulting agreements providing for annual salaries purports to limit) the freedom of the Company or payments in excess any of $350,000its Subsidiaries (or, including target level awards under following the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Closing, Parent or PFS as a result any of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers its Affiliates) to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging sell any products or services of or to any other Person or in any geographic area, (B) engage or compete in any line of business, or (C) obtain products or services from any Person;
(O) that (i) imposes or contains any (A) exclusivity requirements, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation”, “most favored customer,” rights or best price protectionsimilar obligations, or (C) minimum purchase or sale obligations (including any take-or-pay Contracts or “output” Contracts), or (ii) provides for the Company or any of its Subsidiaries to be the exclusive or preferred provider or recipient of any product or service obligations, in each case (x) that is a Contract described in Sections 5.01(k)(i)(C) and 5.01(k)(i)(D) or (y) where such requirement or obligation is material to the Company and its Subsidiaries, taken as a whole;
(xvP) all currently effective agreements setting forth obligations granting to any Person a right of first refusal, right of first offer or option to purchase or acquire any LiveArea Company to indemnify any third partyassets valued at an amount in excess of $2,500,000;
(Q) involving interest rate, currency or commodities swaps, options, caps, collars, h▇▇▇▇▇ or forward exchanges, or other than customersimilar agreements, vendor, licensing and other agreements regardless of whether entered into for the purposes of hedging, investment or otherwise;
(R) pursuant to which the Company and its Subsidiaries (i) obtain the right to use, or a covenant not to be sued under, any Licensed Intellectual Property or (ii) grants the right to use, or a covenant not to be sued under, any Intellectual Property (excluding non-exclusive licenses or sublicenses of Intellectual Property granted by the Company or its Subsidiaries in the ordinary course of business consistent with past practice where such indemnification obligations are not practice), in each case, that is material to the primary purpose of such contractCompany and its Subsidiaries, taken as a whole;
(xviS) all currently effective agreements involving pursuant to which the Company has provided or licensed, or agreed to provide or license, any joint venturesource code containing or embodying any Software included in the Company Intellectual Property to any third party (other than any Contracts relating to immaterial source code that is held in escrow and not used) that is material to the Company and its Subsidiaries, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;taken as a whole; and
(xviiT) that is a partnership or joint venture Contract.
(ii) The Company has made available to Parent prior to the date of this Agreement accurate and complete copies of all agreements from Material Contracts required to be identified in Section 5.01(k)(i) of the prior three Company Disclosure Schedule (3including, for clarity, any exhibits, annexes, appendices or attachments thereto, and any amendments, modifications, supplements, extension or renewals) years involving any resolution or settlement as in effect as of any actual or threatened litigationthe date of this Agreement.
(iii) Except as has not had, arbitration, claim or other dispute whichand would not reasonably be expected to have, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea a Material Adverse Effect, each Material Contract is a valid and binding agreement of the Company or any of its properties Subsidiaries party thereto, enforceable against the Company or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) Subsidiaries and, to the Knowledge of the Disclosure Schedules: (i) Company, each Material Contract is valid and binding on the LiveArea Company other party thereto and enforceable in accordance with its terms against such LiveArea Companyterms, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue is in full force and effect; , subject in each case to the Bankruptcy and Equity Exception (iiand subject to the termination or expiration of any such Material Contract after the date of this Agreement in accordance with its terms). Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, neither the Company nor any of its Subsidiaries, and, to the Knowledge of the Company, no other party thereto, is (or with or without notice or lapse of time would be) no Live Area Company is in default or in breach in under the terms of any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which(with respect to defaults or breaches by any other party thereto, to the Knowledge of the Company, as of the date of this Agreement) that (with the passage of time or the giving of without notice or bothlapse of time) will, or would result reasonably be expected to, (A) constitute such a violation or breach, (B) give any Person the right to accelerate the maturity or performance of any Material Contract or (C) give any Person the right to cancel, terminate or modify in a breach or default in any material respect by any LiveArea manner adverse to the Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
Appears in 1 contract
Sources: Merger Agreement (Convey Health Solutions Holdings, Inc.)
Material Contracts. (a) Section 3.08(a) Except as set forth on the Seller Disclosure Letter and for this Agreement and the contracts filed as exhibits to the Seller SEC Reports, as of the Disclosure Schedules lists each date of the following contracts and this Agreement, none of Seller or its Subsidiaries is a party to or bound by any contract, agreement, commitment, arrangement, lease (including with respect to personal property) or other agreements of the LiveArea Business instrument (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”"Contract"):
(i) each agreement that are or would be required to be filed by Seller as a "material contract" pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by Seller on a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contractsCurrent Report on Form 8-K;
(ii) all agreements containing covenants binding upon Seller or its Subsidiaries that restrict the ability of Seller or any of its Subsidiaries to compete in any business or geographic area that, following the Merger, would apply to Buyer and its Subsidiaries;
(iii) which, based on current volumes and assumptions, is expected to involve the payment or receipt of more than $250,000 in fees or other amounts during the year ending December 31, 2008, or more than $500,000 in fees or other amounts over the next three (3) years of such Contract;
(iv) that, with respect to a joint venture, partnership, limited liability or other similar agreement or arrangement, relate to the formation, creation, operation, management or control of any partnership or joint venture;
(v) involving the acquisition from another Person, or disposition to another Person, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person which (A) the sale was entered into after December 31, 2005 or that has not yet been consummated and which provides for aggregate consideration under such Contract (or series of any related Contracts) in excess of the LiveArea Companies’ assets, $250,000 (other than acquisitions or dispositions of assets in the ordinary course of business business), or (B) capital expenditures contains representations, covenants, indemnities or development costs or expenses, for consideration other obligations that would reasonably be expected to result in payments in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand250,000;
(vi) all currently effective collective bargaining agreements any employment, consulting or agreements other Contract of Seller or any of its Subsidiaries with (A) any labor organizationmember of Seller's Board of Directors or a member of the Board of Directors of any Subsidiary of Seller, union (B) any "executive officer" (as such term is defined in Rule 3b-7 of the Exchange Act) of Seller or association any of its Subsidiaries or (C) any other employee of Seller or any of its Subsidiaries earning an annual salary equal to which a LiveArea Company is a partyor in excess of $125,000, other than those Contracts terminable by Seller or any of its Subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to Seller or any of its Subsidiaries;
(vii) all currently effective employment granting or consulting agreements providing for annual salaries or payments in excess obtaining any right to use any material Intellectual Property Assets (other than Contracts granting rights to use readily available commercial software having an acquisition price of less than $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged 20,000 in the provision of temporary workers aggregate for all such related Contracts), or restricting Seller's rights, or permitting other Persons, to a LiveArea Companyuse or register any material Intellectual Property Assets;
(viii) all existing Benefit Planspursuant to which Seller or any of its Subsidiaries use or hold any material real or personal property, including but not limited to, any Lease, any other leases, subleases, licenses, sublicenses or operating rights relating thereto;
(ix) pursuant to which any material indebtedness of Seller or any of its Subsidiaries is outstanding or may be incurred and all currently effective agreements requiring severance payments in excess guarantees of $100,000 or by Seller or any of its Subsidiaries of any indebtedness of any other Person (other than Seller or any of its Subsidiaries) (excluding trade payables arising in the aggregate ordinary course of business) that would be material to EmployeesSeller and its Subsidiaries;
(x) all agreements involving pursuant to which Seller or relating to an outstanding its Subsidiaries currently performs mortgage loan toservicing in a Securitization Transaction or a Servicing Transaction (each, or investment in, any Persona "Servicing Agreement");
(xi) all currently effective agreements granting with any professional employee organization to provide services to Seller or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closingits Subsidiaries;
(xii) all currently effective Real Property Leaseswith any Affiliate;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto containing any standstill or similar agreement pursuant to which purport Seller or any of its Subsidiaries has agreed not to restrict acquire assets or limit any LiveArea Company from (A) engaging in any line securities of business, (B) competing with any another Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;; or
(xiv) all currently effective customer agreements granting providing for indemnification by Seller or providing any “most favored nation” rights of its Subsidiaries of any Person, except for contracts which are not material to the business as a whole or best price protection;are entered into in the ordinary course. Each such Contract described in clauses (i) through (xiv) is referred to herein as a "Material Contract."
(xvb) all currently effective agreements setting forth obligations (i) Each of any LiveArea Company the Material Contracts (and those contracts which would be Material Contracts but for the exception of being filed as exhibits to indemnify any third partythe Seller SEC Reports) is valid and binding on Seller or its Subsidiaries, as the case may be, and, to the Knowledge of Seller, each other than customerparty thereto and is in full force and effect, vendor, licensing except for such failures to be valid and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development binding or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute whichto be in full force and effect as would not, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any reasonably be expected to have a Seller Material Adverse Effect, (ii) Seller and each of its properties or assets Subsidiaries, and, to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any the Knowledge of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ KnowledgeSeller, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under each Material Contract, except where such Material Contract and is not in default noncompliance, either individually or in breach in the aggregate, would not reasonably be expected to have a Seller Material Adverse Effect, (iii) neither Seller nor any material respect of its Subsidiaries has received written notice of the existence of any event or condition which constitutes, or, after notice or lapse of time or both, would reasonably be expected to constitute, a default on the part of Seller or any of its Subsidiaries under any such Material Contract; , except where such default, either individually or in the aggregate, would not reasonably be expected to have a Seller Material Adverse Effect, and (iv) to the Knowledge of Seller, there are no event has occurred whichevents or conditions which constitute, with the passage or, after notice or lapse of time or the giving of notice or both, would result in reasonably be expected to constitute a breach default on the part of Seller or default in any material respect by of its Subsidiaries or any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) counterparty under any such Material Contract. No counterparty , except as does not have, and would not reasonably be expected to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties have, individually or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of aggregate, a Seller Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessAdverse Effect.
Appears in 1 contract
Material Contracts. (a) Except as set forth in Section 3.08(a4.22(a) of the Company Disclosure Schedules lists each Schedule, as of the following contracts and other agreements date hereof, neither the Company nor any of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):its Subsidiaries is party to or bound by any Contract:
(i) each agreement that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and Regulation S-K under the current calendar year and all shared customer contracts1933 Act;
(ii) all that are employment, independent contractor, consulting, severance or similar agreements with any individual (or such individual’s alter ego entity) under which the Company or any of its Subsidiaries is or could become obligated to provide a base salary or annual consulting fees in excess of $500,000;
(iii) that relate to (or, together with additional related Contracts with the same Person or its Affiliates) (A) involves the sale payment or receipt of amounts by the Company or any of its Subsidiaries of more than $35,000,000 in the LiveArea Companiescalendar year ended December 31, 2022 or any subsequent calendar year or (B) is material to the CCUS Business and cannot be cancelled at any time by the Company or its applicable Subsidiary without penalty or further payment on no more than ninety (90) days’ assetsnotice;
(iv) that are partnership, strategic alliance or joint venture agreements (A) if the interest of the Company or any of its Subsidiaries therein has an aggregate book value in excess of $35,000,000 or (B) that are material to the CCUS Business;
(v) that provides for the acquisition or disposition, directly or indirectly (by merger or otherwise) of assets (including properties) or capital stock (other than acquisitions or dispositions of Hydrocarbons or inventory and raw materials and supplies in the ordinary course of business) (A) for aggregate consideration under such Contract in excess of $25,000,000 or (B) pursuant to which the Company or its Subsidiaries has continuing material “earn-out” or other contingent payment obligations;
(vi) providing for material indemnification by the Company or any its Subsidiaries, other than indemnification obligations in (A) customary joint operating agreements and (B) commercial agreements, in each case, in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate relating to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a partyEOR Business;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing contains any “most favored nation” or most favored customer provision, preferential right or rights of first or best price protectionlast offer, negotiation or refusal (other than customary preferential rights in customary joint operating agreements entered into relating to the EOR Business in the ordinary course of business);
(viii) that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any assets or any equity interests of any Person (excluding, in respect of the foregoing, agreements between the Company and its wholly-owned Subsidiaries);
(ix) that materially restricts or purports to materially restrict the ability of the Company or any of its Affiliates to compete with, or to provide services in any line of business or with any Person or in any geographic area or market segment, in each case that would be applicable to the Surviving Corporation or any of its Subsidiaries or the Parent or any of its Subsidiaries following the Effective Time;
(x) that is a Collective Bargaining Agreement;
(xi) containing any swap, cap, floor, collar, futures contract, forward contract, option and any other derivative financial instrument, contract or arrangement, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever (other than hedg▇▇ ▇▇ forward Contracts entered into in the ordinary course of business);
(xii) (A) with (1) any beneficial owner (as defined in Rule 13d-3 under the 1934 Act) of 5% or more of any class of securities of the Company or any of its Subsidiaries who has filed a Schedule 13D or Schedule 13G under the 1934 Act (or, to the Company’s Knowledge, is required to make such a filing), or (2) any director or officer of the Company or any of its Subsidiaries or (B) that is required to be disclosed under Item 404 of Regulation S-K promulgated under the 1933 Act;
(xiii) that (A) evidences Indebtedness for borrowed money of the Company or any Subsidiary of the Company (committed or outstanding) in excess of $15,000,000, (B) evidences a capitalized lease obligation in excess of $15,000,000 that is required to be classified as a balance sheet liability of the Company in accordance with GAAP or (C) restricts the payment of dividends or other distribution of assets by any of the Company or its Subsidiaries;
(xiv) that would be required to be scheduled against Section 4.04 if in existence as of the date hereof;
(xv) all currently effective agreements setting forth obligations requiring future capital expenditures by the Company or any of any LiveArea Company to indemnify any third party, its Subsidiaries other than customer, vendor, licensing and other agreements entered into any capital expenditure contemplated by Section 6.01(e) of the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contractCompany Disclosure Schedule;
(xvi) all currently effective agreements involving under which the Company or any joint ventureof its Subsidiaries (A) grants any right, partnershiplicense or covenant not to sue with respect to any Intellectual Property (other than non-exclusive licenses granted to customers or vendors in the ordinary course of business) or (B) obtains any right, strategic alliance, shareholders’ agreement, joint development license or similar arrangement;covenant not to be sued with respect to any Intellectual Property owned by any third party (other than licenses for commercial off-the-shelf software which are generally available on non-discriminatory pricing terms); or
(xvii) all agreements from that is the prior three (3) years involving any resolution or settlement subject of any actual Action individually in excess of $5,000,000 and under which there are outstanding obligations (including settlement agreements) of the Company or threatened litigationany of its Subsidiaries.
(b) The Company has made available to Parent a true and complete copy of each Contract listed or required to be listed in Section 4.22(a) of the Company Disclosure Schedule (such Contracts, arbitrationtogether with any Contract to which the Company or any of its Subsidiaries becomes a party or by which it becomes bound after the date hereof that would be required to be listed in Section 4.22(a) of the Company Disclosure Schedule if in effect as of the date hereof, claim the “Material Contracts” and each, a “Material Contract”). Except for breaches, violations or other dispute whichdefaults which would not reasonably be expected to have, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea a Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: Material Adverse Effect, (i) each of the Material Contract Contracts is valid and valid, binding on obligation of the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledgethe Knowledge of the Company, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; , in each case subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles (whether considered in a proceeding in equity or at law), and (ii) no Live Area since the Applicable Date, neither the Company is in default or in breach in nor any material respect ofof its Subsidiaries, or, nor to Sellers’ Knowledge, alleged to be in breach in the Knowledge of the Company any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such a Material Contract; and (iv) no event , has occurred breached or violated any provision of, or taken or failed to take any act which, with the passage or without notice, lapse of time or the giving of notice time, or both, would result in constitute a breach or default in under the provisions of such Material Contract, and neither the Company nor any material respect by any LiveArea Company orof its Subsidiaries has received notice that it has breached, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) violated or defaulted under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
Appears in 1 contract
Sources: Merger Agreement (Denbury Inc)
Material Contracts. (a) Section 3.08(a4.28(h) of the Company Disclosure Schedules lists each of the following contracts and other agreements Contracts of the LiveArea Business Acquisition Targets disclosed the transaction documents governing the applicable Pipeline Binding Acquisition (such Contracts, together with all leases Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.09(f4.28(h) of the Company Disclosure Schedules, collectively, the being “Acquisition Target Material Contracts”):
(i) each agreement of a LiveArea Company Contract involving aggregate consideration in excess of $500,000 during FY 2020 [***], inclusive of the capital expenditures of the Companies, and the current calendar year and all shared customer contractswhich, in each case, cannot be cancelled thereby without penalty or without more than ninety (90) days’ notice;
(ii) all purchase agreements, merger agreements or similar acquisition or disposition agreements that relate to (A) the sale of any of the LiveArea Companies’ assets, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, provide for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iii) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which any of the Acquisition Targets is a party and which provide for annual compensation in excess of $[***] and are not cancellable without penalty or without more than ninety (90) days’ notice;
(iv) except for agreements all Contracts relating to trade receivables, all agreements relating to Indebtedness material indebtedness for borrowed money (including, without limitation, guarantees) of the LiveArea Companiesany Acquisition Target;
(v) all currently effective any partnership, joint venture or similar agreements between that could require any payment or among a LiveArea Company on contribution in excess of $[***], inclusive of the one hand and Parent or any Affiliate capital expenditures of Parent (other than a LiveArea Company) on the other handCompanies;
(vi) any agreement limiting or restraining in any material respect any of the Acquisition Targets or any successor thereto from soliciting customers or engaging or competing in any manner (including any non-competition covenants, exclusivity restrictions, rights of first refusal or most-favored pricing clauses), in any location or in any business;
(vii) any agreement that grants to any Person any right of first offer or right of first refusal to purchase, lease, sublease, use, possess or occupy all currently effective collective bargaining agreements or agreements a substantial portion of the material assets of an Acquisition Target;
(viii) all material Contracts with any labor organization, union or association Governmental Authority to which a LiveArea Company any of the Acquisition Targets is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments Contracts that limit or purport to limit the ability of any of the Acquisition Targets to compete in excess any line of $100,000 business or with any Person or in the aggregate to Employees;any geographic area or during any period of time; and
(x) all collective bargaining agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing Contracts with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements Union to which any LiveArea Company of the Acquisition Targets is a party or by which any party. Complete and correct copies of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Acquisition Target Material Contract have been made available to Harvest. Each Acquisition Target Material Contract is valid and binding on the LiveArea Company party thereto and enforceable applicable Acquisition Target in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue is in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, . None of the Acquisition Targets or, to Sellers’ the Company’s Knowledge, any other party thereto is in material breach of or default under (or, to the Company’s Knowledge, is alleged to be in material breach in of or default under), or has provided or received any material respect ofnotice of any intention to terminate, any Acquisition Target Material Contract; (iii) to Sellers’ Knowledge. To the Knowledge of the Company, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event or circumstance has occurred whichthat, with the passage notice or lapse of time or the giving of notice or both, would constitute an event of default under any Acquisition Target Material Contract or result in a breach termination thereof or default in would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. As of the date of this Agreement, there exists no actual, or to the Company’s Knowledge threatened, termination or cancellation or material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under limitation of any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
Appears in 1 contract
Sources: Business Combination Agreement (Harvest Health & Recreation Inc.)
Material Contracts. The Seller Disclosure Schedule sets forth, as of the date hereof, a listing of all of the following written agreements to which any of the Acquired Companies is a party to or bound by: (a) Section 3.08(a) employment agreement with an individual requiring payments of the Disclosure Schedules lists each of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):
(i) each agreement of a LiveArea Company involving aggregate consideration compensation in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts;
50,000 per year; (iib) all agreements that relate to (A) the sale consulting agreement with an individual requiring payments of any of the LiveArea Companies’ assets, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration compensation in excess of $500,000 in the aggregate;
50,000 per year; (iiic) all agreements that relate to the acquisition of any businessmaterial distributor agreement which is not terminable on ninety (90) days' (or less) notice; (d) joint venture, a material amount of stock partnership or assets of any other Person similar contract or any real property agreement or equity or debt investment agreements; (whether e) contracts which are terminable by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements party or agreements with any labor organization, union or association to which parties thereto upon a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess change of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result control of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Acquired Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between such contracts the parties thereto or termination of which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute whichwould not, individually or in the aggregate, involve amounts exceeding $250,000 have a Company Material Adverse Effect; (f) contracts or which otherwise provide for agreements that limit or purport to limit the ability of an Acquired Company to compete in any equitable remedy line of business or subject in any LiveArea Company geographic area; (g) any contracts or agreements between or among any of the Acquired Companies, on the one hand, and Seller or its properties other Subsidiaries, on the other hand; (h) collective bargaining or assets to any Encumbranceslabor agreements; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) leases and licenses of, and options to purchase, real property pursuant to which an Acquired Company is required to pay or is entitled to receive (x) consideration in excess of $100,000 in any calendar year after December 31, 2002, or (y) consideration in excess of $200,000 in the aggregate over the remaining term of such lease; (j) agreements, notes, bonds, indentures or other instruments governing indebtedness for borrowed money, and any guarantee thereof or the pledge of any assets or other security therefor; (k) material requirements, "take or pay" or similar agreements relating to the Business; (l) material powers of attorney or agency agreements of the Business; (m) material feed ingredient contracts or commodity future contracts, option contracts or similar agreements of the Business, including without limitation, all such agreements that extend beyond sixty (60) days from the date hereof; (n) material agreements or arrangements establishing, creating or relating to any rebate, promotion, advertising coupon or other allowance of the Business; (o) material -52- toll processing, co-packing or similar agreement; or (p) other contract, agreement or arrangement involving an estimated total future payment or payments in excess of $1,000,000 (other than one time purchase orders with respect to raw materials and one time sales contracts relating to the sale of inventory, each in the ordinary course of business). The contracts required to be so listed are referred to herein as the "Company Material Contract is Contracts." With respect to all Company Material Contracts, (i) all such contracts are the valid and binding on the LiveArea obligation of an Acquired Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; , (ii) no Live Area none of the Acquired Companies nor, to Seller's knowledge, any other party to any such Company Material Contract is in material breach thereof, or default or in breach in any material respect ofthereunder, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; and (iii) to Sellers’ Knowledgethere does not exist under any provision thereof, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred whichthat, with the passage of time or the giving of notice or the lapse of time or both, would result in constitute such a breach or default in any material respect by any LiveArea Company ordefault, to Sellers’ Knowledgeexcept for such breaches, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, defaults and events which in the case of a Material Contract with a stated term clauses (i), (ii) and (iii) would not, individually or (y) within one year following the Closing Date, in the case of aggregate, have a Company Material Contract without a stated termAdverse Effect. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) Seller has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Buyer true and correct copies of all Company Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessContracts.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a) Except as set forth on Schedule 2.15(a), as of the Disclosure Schedules lists date hereof, each of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):Companies is not a party to any Contract:
(i) each agreement relating to any Contract that involves performance of a LiveArea Company involving aggregate consideration services or delivery of goods or materials by any of the Companies of an amount or value in excess of One Hundred Thousand Dollars ($500,000 during FY 2020 and the current calendar year and all shared customer contracts100,000);
(ii) all agreements relating to any Contract that relate involves performance of services or delivery of goods or materials to any of the Companies of an amount or value in excess of One Hundred Thousand Dollars (A$100,000);
(iii) relating to any Contract that was not entered into in the sale ordinary course of business and that involves expenditures or receipts of any of the LiveArea Companies in excess of One Hundred Thousand Dollars ($100,000);
(iv) relating to any written employment, consulting or similar arrangements requiring payment by any of the Companies of base annual compensation in excess of One Hundred Thousand Dollars ($100,000);
(v) with or relating to any staffing agency for the provision of temporary labor, personnel or agency workers to any of the Companies pursuant to which any of the Companies paid more than One Hundred Thousand Dollars ($100,000) in the last fiscal year;
(vi) relating to any labor union or other employee representative of a group of employees relating to wages, hours and other conditions of employment;
(vii) relating to any written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by any of the Companies other than in the ordinary course of business;
(viii) pursuant to which any of the Companies has incurred or committed to incur any Funded Indebtedness;
(ix) that by its terms grants an Encumbrance upon any material asset of any of the Companies’ assets;
(x) that by its terms provides for the sale, assignment, license or other disposition of any material asset or right of any of the Companies, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any PersonIntellectual Property Licenses;
(xi) all currently effective agreements granting or evidencing an Encumbrance on pursuant to which any property or asset of any LiveArea Company, the Companies (other than pursuant to a Permitted Encumbrance Company Loan) (A) paid more than One Hundred Thousand Dollars ($100,000) in the last fiscal year or Encumbrance that will be released at or prior to Closing(B) received more than One Hundred Thousand Dollars ($100,000) in the last fiscal year and not otherwise listed in any other portion of Schedule 2.15(a);
(xii) all that by its terms contains any covenant or provision currently effective Real Property Leasesin effect limiting the freedom of any of the Companies from engaging in a line of business or competing in any geographic area;
(xiii) all currently effective agreements that by its terms grants to any of the Companies the exclusive right to provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clientsProducts and Services;
(xiv) all currently effective customer agreements granting pursuant to which any of the Companies is by its terms obligated to make any severance, termination, change in control or providing similar payment to any “most favored nation” rights current or best price protectionformer Company Employee, officer, director or manager;
(xv) all currently effective agreements setting forth containing covenants or other obligations of a Company pertaining to the non-solicitation of employees, customers or Contractors or granting any LiveArea Company to indemnify Person a right of first refusal, first offer, first negotiation or other exclusivity, requirements, output or “most favored customer” provisions or similar restrictions on the operation or scope of any third party, other than customer, vendor, licensing and other agreements entered into of the ordinary course of Companies’ business consistent with past practice where such indemnification obligations are not the primary purpose of such contractor operations;
(xvi) all currently effective agreements involving that is a partnership or joint venture agreement in which any of the Companies participates as a general partner or joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangementventurer;
(xvii) all agreements from pursuant to which any of the prior three (3) years involving Companies has advanced or loaned any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or amount to any of its properties directors, officers or assets to any Encumbrances; andemployees outside the ordinary course of business;
(xviii) all currently effective agreements to which with any LiveArea Company is a party member, manager or by which officer of any of its assets the Companies or business is bound any Affiliate of the same (other than an employment agreement);
(xix) Contracts under which a Company serves Medicare beneficiaries who require equipment or supplies in one or more Competitive Bidding Areas (CBAs) through a DMEPOS Competitive Bidding program;
(xx) pertaining to the provision, sale, distribution, labeling, or marketing of items and/or services that involve amounts exceeding $500,000are payable to any Person, in whole or in part, by a Federal Health Care Program, including, but not limited to, Medicare, Medicaid, and/or TRICARE;
(xxi) with any Physician or Physician-owned entity, whether written or oral;
(xxii) with any Governmental Authority; or
(xxiii) any outstanding written legally binding commitment to enter into any agreement of the type described in the foregoing subsections of this Section 2.15(a).
(b) Except as set forth on Section 3.08(bin Schedule 2.15(b), each Contract that is required to be listed in Schedule 2.15(a) of (each, a “Material Contract”) is in full force and effect and constitutes the Disclosure Schedules: (i) each Material Contract is legal, valid and binding on obligation of each of the LiveArea Companies and, to the Knowledge of Shareholder, enforceable against such Company party thereto and enforceable in accordance with its terms against such LiveArea Companyterms, in each case subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights and remedies generally. Each of the Companies has made available to Sellers’ Knowledgethe Parent complete and correct copies of all written Material Contracts, each together with all amendments, supplements or modifications thereto. There are no oral Material Contracts. No Company nor, to the Knowledge of the Shareholder, any other party theretoto any Material Contract, subject to is in breach of, or in default under, such Material Contract. To the Bankruptcy Exception, and immediately following the consummation Knowledge of the transactions contemplated herebyShareholder, shall continue in full force and effect; (ii) as of the date hereof, no Live Area Company is in default party has given any written notice of termination or in cancellation of any Material Contract or that it intends to assert a breach in any material respect of, or, or seek to Sellers’ Knowledge, alleged to be in breach in any material respect ofterminate or cancel, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a) Schedule 2.18.1 of the Disclosure Schedules lists each Schedule sets forth a true, correct and complete list of all of the following contracts and other agreements Contractual Obligations to which the Company or their subsidiaries are a party or by which the Company or their subsidiaries are bound as of the LiveArea Business date hereof (together with all leases listed in Section 3.09(f) of the Disclosure Scheduleseach, collectively, the a “Material ContractsContract”):
(ia) each agreement any Contractual Obligations, other than a Company Plan, that requires the Company or their subsidiaries to pay or repay an anticipated amount in cash, goods, services or materials of $10,000 or more during the 12 month period ending on the Balance Sheet Date;
(b) any Contractual Obligations that entitle the Company or their subsidiaries to receive an anticipated amount in cash, goods, services or materials of $10,000 or more during the 12 month period ending on the Balance Sheet Date;
(c) any Contractual Obligations relating to the incurrence, assumption or guarantee of any Indebtedness or imposing a LiveArea Lien (other than a Permitted Lien) on any of the material assets or properties of the Company or their subsidiaries;
(d) any Contractual Obligations pursuant to which the Company or their subsidiaries lease any portion of the Leased Real Property;
(e) any lease of tangible assets of the Company or their subsidiaries involving aggregate consideration annual payments in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts25,000;
(iif) all agreements that relate to (A) the sale of any of the LiveArea Companies’ assets, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate Contractual Obligations relating to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property business (whether by merger, consolidation or other business combination, sale of stocksecurities, sale of assets or otherwise), in each case, since inception;
(ivg) except for agreements relating any Contractual Obligations under which any Company or its subsidiaries is, or may become, obligated to trade receivablespay any amount in respect of indemnification obligations, all agreements relating to Indebtedness purchase price adjustment, earn-out payments or otherwise in connection with any (includingi) acquisition or disposition of a business or line of business (whether by way of assets or securities), without limitation(ii) merger, guaranteesconsolidation or other business combination or (iii) series or group of related transactions or events of the LiveArea Companiestype specified in the immediately preceding clauses (i) and (ii);
(vh) all currently effective agreements any Contractual Obligations concerning or consisting of a partnership, limited liability company or joint venture agreement or any other relationship involving the sharing of profits, losses or costs, including any agreement with respect to the Equity Securities of a Person;
(i) any Contractual Obligations (i) under which any Company or its subsidiaries has created, incurred, assumed or guaranteed any material Indebtedness or (ii) under which any Company or its subsidiaries has permitted any material asset to become subject to a Lien;
(j) any Contractual Obligations under which any other Person has guaranteed any Indebtedness of the Company or their subsidiaries;
(k) any Contractual Obligations under which the Company or their subsidiaries have or may have, any Liability to any investment bank, broker, financial advisor, finder or other similar Person (including an obligation to pay any legal accounting, brokerage, finder’s or similar fees or expenses in connection with this Agreement or Transactions), unless any such Liability is reflected in the transaction expenses or the estimated Net Working Capital set forth in Exhibit B;
(l) any profit sharing, equity option, equity purchase, equity appreciation, deferred compensation, or severance Contractual Obligations for the benefit of any current or former directors, shareholders, partners, officers or employees, consultants or independent Contractual Obligations of the Company and/or their subsidiaries;
(m) any Contractual Obligations (other than a Company Plan) providing for the employment or consultancy (including on an independent Contractual Obligations or basis) of an individual (or, in the case of a consultant or independent Contractual Obligations or, an entity) on a full- time, part-time, consulting or other basis or otherwise providing compensation or other benefits to any director, shareholder, officer, partner, employee or consultant, in each case, involving at least $50,000 per annum for the 12 month period ending on the Balance Sheet Date;
(n) any Contractual Obligations under which any Company or its subsidiaries has advanced or loaned an amount to any of its employees (other than travel allowances in the ordinary course of business), Affiliates, Members of the Immediate Family of the Seller Owner or any Members of the Immediate Family of any officer or director of the Company and/or their subsidiaries;
(o) any settlement, conciliation or similar Contractual Obligations imposing an unpaid monetary obligation or other material obligation (other than confidentiality) on the Company and/or their subsidiaries after the Closing Date;
(p) any Contractual Obligations that limit the ability of any Company or any of their Affiliates to incur any Indebtedness or to guarantee any Indebtedness or other obligation of any Person, or that limits the amount of Indebtedness that any Company or any of their Affiliates may incur or guarantee, or prohibits any of them from granting any Lien on any asset to secure any Indebtedness incurred or guaranteed;
(q) any Contractual Obligations providing for severance or other termination or change of control payments, or termination or change of control benefits, to any officer, director or employee of the Company and/or their subsidiaries;
(r) any collective bargaining agreement or other Contractual Obligations with any labor organization, union, works council or similar organization;
(s) any Contractual Obligations between the Company on the one hand, and the Seller Owner or among a LiveArea any Affiliate of Seller Owner (other than the Company);
(t) any Contractual Obligations that limit or purport to limit the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(u) any Contractual Obligations between the Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organizationMaterial Customer, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan toMaterial Supplier, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any EncumbrancesEHR Partner; and
(xviiiv) all currently effective agreements to which any LiveArea Company other Contractual Obligation that is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject material to the Bankruptcy Exception, Company and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, not previously disclosed pursuant to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Businessthis Section 2.18.1.
Appears in 1 contract
Sources: Asset and Stock Purchase Agreement (CareCloud, Inc.)
Material Contracts. (a) Section 3.08(a3.15(a) of the Save-A-Lot Disclosure Schedules lists each sets forth as of the date of this Agreement a list, which is complete and accurate in all material respects, of the following contracts Contracts (other than Benefit Plans, purchase orders and other agreements invoices) relating to the Business to which any of the LiveArea Business Save-A-Lot Entities is a party or is bound (such Contracts, together with all leases listed (i) purchase orders and invoices in respect of such Contracts, (ii) any Material Food Vendor Contracts and (iii) any Contracts, purchase orders and invoices in respect of such Material Food Vendor Contracts entered into after the date hereof and prior to the Closing that if entered into prior to the date hereof would have been required to be set forth in Section 3.09(f3.15(a) of the Save-A-Lot Disclosure Schedules, collectively, the “Business Material Contracts”):
(i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and Vendor Contracts material to the current calendar year and all shared customer contractsBusiness with vendors pursuant to which such vendor provides information technology, human resources or financial services to any Save-A-Lot Entity;
(ii) all agreements that relate to any customer, distribution and supply Contracts and Vendor Contracts, other than such Contracts (A) under which the sale of Save-A-Lot Entities or the Business purchased or sold during the twelve (12)-month period immediately preceding February 27, 2016, or are obligated to purchase in any of the LiveArea Companies’ assetstwelve (12)-month period thereafter, other than in the ordinary course aggregate, $1,000,000 or less of business or goods and/or services, (B) capital expenditures that can be terminated on less than ninety (90) days’ notice without material monetary penalty, (C) that are a Licensee Contract or development costs or expenses, (D) that are Vendor Contracts in respect of goods for consideration in excess of $500,000 in the aggregateresale;
(iii) all agreements that relate any Licensee Contract with a licensee whose Save-A-Lot stores, individually or in the aggregate, have wholesale purchases from Save-A-Lot in excess of $20,000,000 during the fiscal year ended February 27, 2016 (any such licensee, a “Significant Licensee” and each such Licensee Contract, a “Significant Licensee Contract”);
(iv) any Contract containing any future capital expenditure obligations of the Save-A-Lot Entities or the Business in excess of $2,000,000;
(v) any Contract relating to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property business (whether by merger, sale of stock, sale of assets or otherwise);
) (ivA) except for agreements relating to trade receivablesentered into by a Save-A-Lot Entity since January 1, all agreements relating to Indebtedness (including, without limitation, guarantees) 2014 involving consideration in excess of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent $5,000,000 (other than any Contract solely in respect of store inventory, which Contract is unrelated to any acquisition of a LiveArea Companystore, its operations or similar transaction) on or (B) under which the other handSave-A-Lot Entities have or will have a material obligation with respect to an “earn out,” contingent purchase price or similar contingent payment obligation;
(vi) all currently effective collective bargaining agreements (A) any Contract material to the Business pursuant to which any of the Save-A-Lot Entities will license or agreements is otherwise permitted by a third party to use any material Intellectual Property (other than any “shrink wrap,” “commercially available software package” or “click through” license) with aggregate payments greater than $200,000 during the twelve (12)-month period immediately preceding February 27, 2016 or (B) any labor organization, union or association Contract material to the Business pursuant to which a LiveArea Company is a partythird party licenses any material Intellectual Property owned by any of the Save-A-Lot Entities, in each case other than any Licensee Contract;
(vii) all currently effective employment any Contract relating to or consulting agreements providing for annual salaries evidencing Indebtedness (of a type listed in clauses (a) through (f), or payments clause (m) with respect to a type listed in clauses (a) through (f), of the definition of Indebtedness) of the Save-A-Lot Entities in excess of $350,000, including target level awards under 1,000,000 individually (other than such Indebtedness solely among Save-A-Lot Entities or that will be cancelled or otherwise eliminated pursuant to the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable Separation Agreement prior to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea CompanyClosing);
(viii) all existing Benefit Plansany Contract containing any non-competition provision that by its terms currently limits in any material respect the ability of the Save-A-Lot Entities or, after the consummation of the Merger, purports to limit in any material respect Purchaser or any of its Affiliates (in their capacity as such), to engage in any line of business with any Person or in any geographic area, other than any geographic limitations on the Business contained in any Licensee Contract;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employeesany material partnership agreement or joint venture agreement;
(x) all agreements involving any Contract that provides for any of the Save-A-Lot Entities to provide goods or relating services pursuant to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights provision or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third partyequivalent preferential pricing terms, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where except for such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute whichContracts as would not, individually or in the aggregate, involve amounts exceeding reasonably be expected to be material to the Business and the Save-A-Lot Entities, taken as a whole;
(xi) without duplication of clauses (i) and (ii) above, all supply Contracts or Vendor Contracts with suppliers or vendors from which the Save-A-Lot Entities or the Business purchased during the twelve (12)-month period immediately preceding February 27, 2016, or are obligated to purchase in any twelve (12)-month period thereafter, in the aggregate, $250,000 20,000,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any more of its properties or assets to any Encumbrancesgood and/or services; and
(xviiixii) all currently effective agreements any supply Contract or Vendor Contract involving or relating to the joint purchase of goods for resale by or for the benefit of a Save-A-Lot Entity and a member of the Supervalu Group, other than any such Contract under which the Save-A-Lot Entities or the Business, together with the Supervalu Group, jointly purchased or sold during the twelve (12)-month period immediately preceding February 27, 2016, or are obligated to purchase in any LiveArea Company is a party twelve (12)-month period thereafter, in the aggregate, $1,000,000 or by which any less of its assets or business is bound that involve amounts exceeding $500,000goods.
(b) Except as set forth on Section 3.08(b3.15(b) of the Save-A-Lot Disclosure Schedules: Schedules sets forth as of the date of this Agreement a list, which is complete and accurate in all material respects, of each vendor in respect of which the Save-A-Lot Entities purchased more than $20,000,000 of goods for resale during the twelve (12)-month period immediately preceding February 27, 2016.
(c) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Business and the Save-A-Lot Entities, taken as a whole, (i) each Business Material Contract is a legal, valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Companyobligation of a Save-A-Lot Entity, and to Sellers’ Knowledgeas applicable, each other party theretoand, subject to the Bankruptcy ExceptionKnowledge of Supervalu, on each counterparty and immediately following the consummation of the transactions contemplated hereby, shall continue is in full force and effect; , in each case, subject to the Enforceability Exceptions, (ii) no Live Area Company neither the Save-A-Lot Entities, nor to the Knowledge of Supervalu, any other party thereto, is in default breach of, or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect ofdefault under, any such Business Material Contract; , (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, that with the passage notice or lapse of time or the giving of notice or both, both would result in constitute such a breach or default in of any material respect Business Material Contract by any LiveArea Company the Save-A-Lot Entities, or, to Sellers’ Knowledgethe Knowledge of Supervalu, by any other party thereto thereto, and (other than iv) neither Supervalu nor any LiveArea Company) under of its Subsidiaries have received written notice of termination, cancellation or non-renewal with respect to any Business Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
Appears in 1 contract
Sources: Merger Agreement (Supervalu Inc)
Material Contracts. (a) Section 3.08(a3.11(a) of the Company Disclosure Schedules lists each contains a complete and accurate list of the following contracts and other agreements Contracts as of the LiveArea Business date hereof (together other than with all leases listed in regard to Benefit Plans set forth on Section 3.09(f3.19(a) of the Company Disclosure Schedules), including any amendments, modifications and supplements thereto, to which the Company or any of its Subsidiaries is a party or to which their respective assets, rights, property or business are bound or subject to (each Contract required to be listed on Section 3.11(a) of the Company Disclosure Schedules, collectivelywhether or not actually listed thereon, the a “Material ContractsContract”):
(i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 Contracts with the Material Advertisers, Material Aggregators and the current calendar year and all shared customer contractsMaterial Suppliers;
(ii) all agreements Contracts the Company reasonably anticipates will involve payments by or to the Company and its Subsidiaries in the current fiscal year in excess of $1,000,000 individually, other than Contracts with Material Advertisers, Material Aggregators and Material Suppliers;
(iii) leases or subleases, either as lessee or sublessee or lessor or sublessor, of personal property, where the lease or sublease provides for an annual rent in excess of $1,000,000 and has an unexpired term as of the date hereof in excess of one (1) year;
(iv) Contracts that relate restrict or purport to (A) restrict the sale right of the Company or any of the LiveArea Companies’ assetsits Subsidiaries or Affiliates to compete with any other Person or to engage in any business activity or line of business, other than in the ordinary course course;
(v) Contracts (A) granting to the counter-party any rights of business first refusal or first offer, most favored customer pricing, or any material Contract providing for the grant of exclusive sales, distribution, marketing, franchising consignment or other exclusive rights, rights of first negotiation or similar rights and/or terms to any Person; or (B) capital expenditures requiring the Company or development costs any of its Subsidiaries to purchase all or expensessubstantially all of a particular service, product or material from a supplier or containing a minimum purchase or supply commitment, in the case of the foregoing clause (B), only where the contract price for consideration such Contract is in excess of $500,000 1,000,000 per annum individually or where such individual contracts would exceed $5,000,000 per annum in the aggregate;
(iiivi) all agreements that relate material Contracts relating to Intellectual Property or IT Systems, excluding (i) commercially available, off-the-shelf, non-exclusive software licenses to the acquisition of any business, a material amount of stock or assets of any other Person Company or any real property of its Subsidiaries which involve payments in the current fiscal year of less than $1,000,000 and (whether ii) non-exclusive licenses granted by merger, sale the Company or such of stock, sale its Subsidiaries to customers in the ordinary course of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a partybusiness;
(vii) all currently effective employment leases or consulting agreements providing for annual salaries sublease or payments in excess material license of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea CompanyLeased Real Property;
(viii) all existing Benefit PlansContracts evidencing or securing Indebtedness of the Company or any of its Subsidiaries in excess of $1,000,000 (other than intercompany loans involving wholly-owned Subsidiaries);
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate Contracts relating to Employeesany interest rate, currency, commodity derivatives, swap or hedging transaction;
(x) all Contracts (other than any non-disclosure agreements involving entered into by the Company or any of its Subsidiaries) relating to an outstanding loan tothe acquisition or disposition (whether directly or indirectly, in a single transaction or a series of related transactions) of, or investment inmerger with, any Personbusiness or Person or division thereof, in each case, (i) within the last three (3) years or (ii) that contain any surviving payment or indemnification obligations with respect to the Company or any of its Subsidiaries or Affiliates;
(xi) all currently effective agreements granting Contracts involving a partnership, strategic alliance, joint venture or evidencing an Encumbrance on any property the sharing of revenues, profits, losses, costs or asset of any LiveArea Company, liabilities (other than a Permitted Encumbrance (i) Contracts entered into in the ordinary course of business with billing aggregators respecting the allocation of user revenue, (ii) marketing or Encumbrance that will be released at advertising agreements; or prior to Closing(iii) Contracts entered into between the Company and its Subsidiaries, or between any of the Subsidiaries) and any shareholder or limited liability company agreements;
(xii) all currently effective Real Property LeasesContracts with any Governmental Entity (other than Permits);
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth Contracts containing continuing obligations of the Company or any LiveArea Company of its Subsidiaries relating to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigationProceeding (including, arbitrationwithout limitation, claim any Proceeding to which a Governmental Entity is a party) for an amount in excess of $1,000,000;
(xiv) Contracts requiring any capital lease, capital commitment or other dispute whichcapital expenditures (including any series of related expenditures) in excess of $1,000,000 per annum;
(xv) Contracts for the employment of, individually or receipt of any services from, any employee or consultant on a full-time or part-time basis providing for an annual base salary in excess of $150,000, and Contracts providing for severance, termination, retention, change in control or similar payment to any employee;
(xvi) Contracts under which the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties Subsidiaries has an outstanding advance or assets loan to any Encumbrancesother Person (including a Subsidiary of the Company, exclusive of intercompany payables or receivables arising in the ordinary course of business and for which there is no underlying written Contract), excluding (i) advances of business expenses to employees or directors in the ordinary course of business, and (ii) loans to employees for travel season tickets, relocation or otherwise, in each case (for clause (ii)) not exceeding £10,000;
(xvii) Contracts for or relating to each datacenter facility used by the Company or any of the Company’s Subsidiaries to conduct a material part of their respective businesses; and
(xviii) all currently effective agreements to which any LiveArea Company is Contracts with a party or by which any of its assets or business is bound that involve amounts exceeding $500,000Related Party.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Each Material Contract is valid valid, binding and binding on in full force and effect with respect to the LiveArea Company party thereto and or a Subsidiary of the Company (as the case may be) and, to the knowledge of the Company, the other parties thereto. Each Material Contract is enforceable against the Company or a Subsidiary of the Company (as the case may be) and, to the knowledge of the Company, the other parties thereto, in accordance with its terms against such LiveArea terms, except to the extent enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors’ rights and by the availability of injunctive relief, specific performance and other equitable remedies. Neither the Company nor any of its Subsidiaries has received any written notification that is in material breach or default in the performance of any of their respective obligations under any Material Contract and, to the knowledge of the Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each any Material Contract has performed all obligations is in all material respects required to be performed by it under such Material Contract and is not in breach or default or in breach in any material respect of any such Material Contract; and (iv) no thereunder. No event has occurred exists which, with the passage of time or the giving of notice or lapse of time or both, would result in constitute a breach material breach, default or event of default in on the part of the Company or any material respect by of its Subsidiaries under any LiveArea Company Material Contract or, to Sellersthe knowledge of the Company, any other party thereto. Except in the ordinary course of business, there is no pending or, to the knowledge of the Company, threatened audit or Proceeding of or regarding the Company’s or any Subsidiaries’ Knowledge, compliance with any Material Contract by any other party thereto (other than any LiveArea Company) under any to such Material Contract. No counterparty The Company has made available to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination dateParent a true, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true correct and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding Contract; provided that Material Contracts that are solely statements of work) has , purchase orders or invoices for the purchase or sale of products or services entered into in the ordinary course of business shall not be required to have been made available to Buyers. The LiveArea Business has Parent solely to the extent they do not incurred deviate in any material liability under any Material Contract arising substantive respect from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any standard forms for such liability based upon alleged breach of an express or implied warranty regarding a product or service of counterparty made available to Parent prior to the LiveArea Businessdate hereof.
Appears in 1 contract
Sources: Merger Agreement (Bumble Inc.)
Material Contracts. (a) Section 3.08(a) Except as set forth on Schedule 2.15(a), as of the Disclosure Schedules lists each of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedulesdate hereof, collectively, the “Material Contracts”):Seller is not a party to any Contract:
(i) each agreement relating to any Contract that involves performance of a LiveArea Company involving aggregate consideration services or delivery of goods or materials by Seller of an amount or value in excess of Fifty Thousand and 00/100 Dollars ($500,000 during FY 2020 and the current calendar year and all shared customer contracts50,000.00);
(ii) all agreements relating to any Contract that relate involves performance of services or delivery of goods or materials to Seller of an amount or value in excess of Fifty Thousand and 00/100 Dollars (A$50,000.00);
(iii) relating to any Contract that was not entered into in the sale ordinary course of business and that involves expenditures or receipts of Seller in excess of Fifty Thousand and 00/100 Dollars ($50,000.00);
(iv) relating to any written employment, consulting or similar arrangements requiring payment by Seller of base annual compensation in excess of Fifty Thousand and 00/100 Dollars ($50,000.00);
(v) with or relating to any staffing agency for the provision of temporary labor, personnel or agency workers to Seller pursuant to which Seller paid more than Fifty Thousand and 00/100 Dollars ($50,000.00) in the last fiscal year;
(vi) relating to any labor union or other employee representative of a group of employees relating to wages, hours and other conditions of employment;
(vii) relating to any written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller other than in the ordinary course of business;
(viii) pursuant to which Seller has incurred or committed to incur any Funded Indebtedness;
(ix) that by its terms grants an Encumbrance upon any material asset of Seller;
(x) that by its terms provides for the sale, assignment, license or other disposition of any material asset or right of the LiveArea Companies’ assetsSeller, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any PersonIntellectual Property Licenses;
(xi) all currently effective agreements granting pursuant to which Seller (A) paid more than One Hundred Thousand and 00/100 Dollars ($100,000.00) in the last fiscal year or evidencing an Encumbrance on (B) received more than One Hundred Thousand and 00/100 Dollars ($100,000.00) in the last fiscal year and not otherwise listed in any property or asset other portion of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to ClosingSchedule 2.15(a);
(xii) all that by its terms contains any covenant or provision currently effective Real Property Leasesin effect limiting the freedom of Seller from engaging in a line of business or competing in any geographic area;
(xiii) all currently effective agreements that by its terms grants to Seller the exclusive right to provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clientsProducts and Services;
(xiv) all currently effective customer agreements granting pursuant to which Seller is by its terms obligated to make any severance, termination, change in control or providing similar payment to any “most favored nation” rights current or best price protectionformer Employee, officer, director or manager;
(xv) all currently effective agreements setting forth containing covenants or other obligations of Seller pertaining to the non-solicitation of employees, customers or Contractors or granting any LiveArea Company to indemnify any third partyPerson a right of first refusal, first offer, first negotiation or other than exclusivity, requirements, output or “most favored customer, vendor, licensing and other agreements entered into ” provisions or similar restrictions on the ordinary course operation or scope of business consistent with past practice where such indemnification obligations are not the primary purpose of such contractBusiness or operations;
(xvi) all currently effective agreements involving any that is a partnership or joint venture, partnership, strategic alliance, shareholders’ agreement, venture agreement in which Seller participates as a general partner or joint development or similar arrangementventurer;
(xvii) all agreements from the prior three (3) years involving pursuant to which Seller has advanced or loaned any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or amount to any of its properties directors, officers or assets to any Encumbrances; andemployees outside the ordinary course of business;
(xviii) all currently effective agreements with any member, manager or officer of Seller or any Affiliate of the same (other than an employment agreement);
(xix) with any Governmental Authority; or
(xx) any outstanding written legally binding commitment to which enter into any LiveArea Company is a party or by which any agreement of its assets or business is bound that involve amounts exceeding $500,000the type described in the foregoing subsections of this Section 2.15(a).
(b) Except as set forth on Section 3.08(bin Schedule 2.15(b), each Contract that is required to be listed in Schedule 2.15(a) of (each, a “Material Contract”) is in full force and effect and constitutes the Disclosure Schedules: (i) each Material Contract is legal, valid and binding on obligation of Seller and, to the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ KnowledgeKnowledge of Seller, each other party thereto, enforceable against such party in accordance with its terms, in each case subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights and remedies generally. Seller has made available to the Bankruptcy ExceptionPurchaser complete and correct copies of all written Material Contracts, and immediately following together with all amendments, supplements or modifications thereto. There are no oral Material Contracts. Seller nor, to the consummation Knowledge of the transactions contemplated herebySeller, shall continue in full force and effect; (ii) no Live Area Company any other party to any Material Contract, is in default breach of, or in breach default under, such Material Contract, in any material respect respect. To the Knowledge of Seller, as of the date hereof, no party has given any written notice of termination or cancellation of any Material Contract or that it intends to assert a breach of, or, or seek to Sellers’ Knowledge, alleged to be in breach in any material respect ofterminate or cancel, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a3.16(a) of the Company Disclosure Schedules lists Letter sets forth a correct and complete list, as of the date hereof, of each of the following contracts and Contracts (other agreements of the LiveArea Business (together with all leases listed in than Company Plans set forth on Section 3.09(f3.12(a) of the Company Disclosure SchedulesLetter) to which the Company is a party and under which the Company has remaining rights or obligations (each, collectively, the a “Material ContractsContract”):
(i) each agreement any Contract that involved payments or consideration of a LiveArea more than $50,000 in the fiscal year ended December 31, 2013 for goods and services furnished by the Company involving aggregate consideration in excess of $500,000 during FY 2020 or for goods and services furnished to the current calendar year and all shared customer contractsCompany;
(ii) all agreements that relate any Real Property Lease with annual rental payments in excess of $75,000;
(iii) any Contract under which the Company has continuing material indemnification obligations to (A) the sale of any of the LiveArea Companies’ assetsthird Person, other than those entered into in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except any Contract for agreements relating to trade receivablescapital expenditures involving payments of more than $50,000 for the fiscal year ending December 31, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies2014;
(v) all currently effective agreements between any Contract involving a material joint venture or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other handpartnership agreement;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association Contract relating to Indebtedness of the Company under which a LiveArea Company the principal amount outstanding thereunder is a partygreater than $50,000;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result Contract containing covenants of the transactions contemplated by this AgreementCompany not to (A) compete with any Person, and all agreements with each staffing firm (B) solicit any Person for employment; or agency engaged (C) engage in the provision of temporary workers to a LiveArea Companyany line business or activity in any geographic region;
(viii) all existing Benefit Plansany Contract evidencing an outstanding loan, advance or investment by the Company to or in any Person of more than $50,000 in the aggregate (excluding trade receivables and advances to employees for normally incurred business expenses, each arising in the ordinary course of business);
(ix) all currently effective agreements requiring severance payments in excess any Contract involving the sale, transfer or acquisition of $100,000 any material business entered into by the Company in the aggregate to Employeescalendar year preceding the date of this Agreement;
(x) all agreements involving any material Company IP Agreement (other than Off-the-Shelf Software Licenses that involve annual payments or relating to an outstanding loan to, or investment in, any Personconsideration of no more than $25,000 in the aggregate);
(xi) all currently effective agreements granting any Contract under which any Person has an exclusive right to purchase products or evidencing an Encumbrance on any property services from, or asset of any LiveArea supply products or services to, the Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;any Contract for the sale of the Company’s products or services that is not terminable at will by either party thereto; and
(xiii) all currently effective agreements that provide any Contract for exclusive dealings between goods and services furnished to the parties thereto Company involving payments or which purport to restrict or limit any LiveArea Company from (A) engaging in any line consideration of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other more than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or $50,000 in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) The Company has made available to Parent correct and complete copies of the Disclosure Schedules: (i) each Material Contract. Each Material Contract is a valid and binding on obligation of the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea (and, to the Knowledge of the Company, and to Sellers’ Knowledge, each the other party or parties thereto) and is in full force and effect and is enforceable against the Company (and, to the Knowledge of the Company, the other party or parties thereto), subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Enforceability Exceptions. The Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in breach, violation of or default (or would be in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, default with the passage of time or the giving of notice or lapse of time, or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements event has occurred that, with the giving of work) has provided written notice notice, lapse of time, or both, would constitute a material breach or default by the Company or, to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination dateCompany’s Knowledge, in the case other party thereto, of a Material Contract with a stated term or (y) within one year following Contract. Assuming that any necessary third-party consents are obtained, each of the Closing Date, Material Contracts is and will remain in full force and effect upon the case consummation of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyersthe Transactions. The LiveArea Business Company has not incurred received any material liability under written, or to the Company’s Knowledge, oral notice of any Person’s intent to terminate or materially amend any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessContract.
Appears in 1 contract
Sources: Merger Agreement (Alliqua, Inc.)
Material Contracts. (a) Section 3.08(a3.11(a) of the Sellers’ Disclosure Schedules lists each Schedule sets forth a list of all of the following contracts and other agreements Contracts of the LiveArea Business as of the date of this Agreement (together with all leases listed unless otherwise specified below) to which any Seller is a party or by which it is bound (the Contracts identified or required to be identified in Section 3.09(f3.11(a) of the Sellers’ Disclosure SchedulesSchedule, collectively, are collectively referred to as the “Material Contracts”):
(i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contractsMaterial Sign Location Lease;
(ii) all agreements that relate to (A) the sale of any of the LiveArea Companies’ assets, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregateFacility Leases;
(iii) all agreements that relate Indemnity Agreements, Assigned Non-Competition Agreements, Acquisition Agreements, and Other Assigned Contracts, but only to the acquisition of any business, a material amount of stock extent Seller will be obligated or assets of any other Person could reasonably be expected to pay one or any real property (whether by merger, sale of stock, sale of assets or otherwise)more Persons more than $50,000 following the Closing;
(iv) except each Advertising Contract providing for agreements relating to trade receivablesfuture revenue from the advertising customer as of September 30, all agreements relating to Indebtedness 2022 which (includingi) produced advertising revenue in excess of $15,000 for twelve-month period ending September 30, without limitation2022 or (ii) will, guarantees) by its terms, produce advertising revenue in excess of $15,000 for the LiveArea Companiestwelve-month period beginning on the Closing Date;
(v) all currently effective agreements between Contracts entered into since the Lookback Date (or among pursuant to which any unpaid amounts or future obligations remain) relating to the acquisition or disposition by a LiveArea Company on the one hand and Parent Seller of any business, capital stock or any Affiliate of Parent (other than a LiveArea Company) on the other handequity security, asset or product line;
(vi) all currently effective collective bargaining agreements Contracts for or agreements with relating to the making of any labor organizationmaterial loans to, union or association to which a LiveArea Company is a partyguarantee of obligations of, or investments in, another Person;
(vii) all currently effective employment Contracts granting a right of first refusal, first offer or consulting agreements providing for annual salaries similar preferential right to purchase or payments acquire equity interests in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea CompanySeller;
(viii) all existing Benefit Plans;
Contracts containing covenants prohibiting, restricting or limiting the right or ability of a Seller, during any period of time and/or in any geographic area, (ixa) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging compete in any line of business, (Bb) competing to conduct business with any Person, (Cc) doing business in to provide services to any geographical area Person or (Dd) soliciting to solicit or engaging hire any clientsPerson;
(xivix) all currently effective customer agreements granting Contracts for joint venture agreements, strategic alliances, sharing of profits or providing any “most favored nation” rights or best price protectionsimilar partnerships;
(xvx) all currently effective agreements setting forth obligations Contracts relating to the incurrence, assumption or guarantee of any LiveArea Company to indemnify any third party, indebtedness or imposing a Lien (other than customera Permitted Lien) on any of the assets of a Seller, vendorincluding indentures, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contractguarantees, loan or credit agreements;
(xvixi) all currently effective agreements Contracts involving the settlement of any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development Legal Proceeding to which any unpaid amounts or similar arrangementfuture obligations remain;
(xviixii) all Contracts that require a Seller to make any material capital expenditures; and
(xiii) Contracts which provide for indemnification to any Person (other than (x) agreements from with customers, vendors, lenders or lessors entered into in the prior three Ordinary Course of Business or (3y) years involving any resolution the Organizational Documents of the Sellers) or settlement the express assumption of any actual Tax or threatened litigationmaterial environmental liability.
(b) All Material Contracts are in writing. Except as set forth on Section 3.11(b) of the Sellers’ Disclosure Schedule, arbitrationeach Material Contract is in full force and effect and is a legal, claim valid, binding and enforceable obligation of the Seller party thereto, as the case may be, and, to the Knowledge of Sellers, of any other party or other dispute whichparties thereto, except (i) as enforceability may be limited by applicable Equitable Principles or (ii) where the failure to be legal, valid, binding or enforceable would not have, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) Business Material Adverse Effect. None of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea CompanySellers nor, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation Knowledge of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each the Material Contract has performed all obligations Contracts is in all material respects required to be performed by it breach or default under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred or condition or circumstance exists, with respect to the Sellers which, with the delivery of notice, the passage of time or the giving of notice or both, or the happening of any other event or condition, would result in reasonably be expected to constitute a breach or default in any material respect by any LiveArea Company ordefault, to Sellers’ Knowledgeor permit the termination, by any party thereto (other than any LiveArea Company) modification or acceleration under any such Material Contract. No counterparty party to any Material Contract has exercised any termination rights with respect thereto, and no party has given or received notice of any dispute with respect to any Material Contract.
(excluding statements c) Except as shown on Section 3.11(c) of workthe Sellers’ Disclosure Schedule, all material obligations of Sellers and, to the Knowledge of Sellers, of the lessors under the Material Sign Location Leases required to be performed prior to the Closing Date hereof have been performed. Except as shown on Section 3.11(c) of the Sellers’ Disclosure Schedule, Seller (a) has provided written received no take down orders from any Governmental Authority or notice to the LiveArea Pre-Reorg Parties or from any LiveArea Company an intention landowner of intent to terminate such or not renew any Material Contract Sign Location Lease, and (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of workb) has been made available to Buyers. The LiveArea Business has not incurred received no notice from any material liability landowner of breach or default under any the Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessSign Location Leases.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a) of the Disclosure Schedules lists each of the following contracts and other agreements of the LiveArea Business (together with all leases The Contracts listed in Section 3.09(fSchedule 3.1(24) of the Disclosure Schedules, collectively, (the “Material Contracts”):) constitute all Contracts (other than Excluded Contracts) of the types described below, including:
(i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 Leases, licenses, Permits, franchises, Governmental Authorizations and other Contracts concerning or relating to the current calendar year and all shared customer contractsLeased Premises;
(ii) all employment, consulting, agency, collective bargaining or other similar contracts, agreements, and other instruments and arrangements relating to or for the benefit of current, future or former employees, officers, directors, sales representatives, distributors, dealers, agents, independent contractors or consultants;
(iii) loan agreements, indentures, letters of credit, mortgages, security agreements, pledge agreements, deeds of trust, bonds, notes, guarantees, and other agreements that relate and instruments relating to the borrowing of money or obtaining of or extension of credit;
(Aiv) licenses, licensing arrangements and other Contracts providing in whole or in part for the sale use of, or limiting the use of, any Intellectual Property;
(v) brokerage or finder’s agreements;
(vi) joint venture, partnership and similar Contracts involving a sharing of profits or expenses;
(vii) stock purchase agreements, asset purchase agreements and other acquisition or divestiture agreements relating to the acquisition, sale, lease or disposal of any of the LiveArea Companies’ assets, Purchased Assets (other than sales of Inventory in the ordinary course of business business) or involving continuing indemnity or other obligations;
(Bviii) capital expenditures orders and other Contracts for the purchase or development costs sale of materials, supplies, products or expensesservices, for consideration each of which involves aggregate payments in excess of $500,000 75,000;
(ix) Contracts (other than those included under Section 3.1(24)(a) (viii)) with respect to which the aggregate amount that could reasonably be expected to be paid or received thereunder in the future exceeds $75,000 per annum or $250,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving sales agency, manufacturer’s representative, marketing or relating to an outstanding loan to, or investment in, any Persondistributorship agreements;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset Contracts with respect to the representation of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closingthe Business in foreign countries;
(xii) all currently effective Real Property LeasesContracts restricting or otherwise limiting the ability of the Vendor to engage in any business or compete in any jurisdiction or otherwise solicit customers;
(xiii) all currently effective master lease agreements that provide providing for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from leasing of both (A) engaging personal property primarily used in, or held for use primarily in any line of businessthe conduct of, the Business and (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clientsother personal property;
(xiv) all currently effective customer agreements granting Contracts with any employee, director, officer, or providing any “most favored nation” rights or best price protectionshareholder of the Vendor;
(xv) all currently effective agreements setting forth obligations any Contract with a third party for the benefit of the Vendor that restricts or otherwise limits the ability of the third party to engage in any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into business that is competitive with the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contractBusiness;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development each Contract with exclusive supply or similar arrangementrequirements obligations;
(xvii) all agreements from each Contract with a material customer or supplier, as those customers and suppliers are defined in Section 3.1(26);
(xviii) each Contract with any Affiliate of the prior three Vendor;
(3xix) years involving each Contract providing for any resolution or settlement of any actual or threatened litigation, arbitration, claim “earn out” type arrangement;
(xx) each Contract with “assignment” or other dispute whichprovisions that will be triggered by consummation of the Transactions contemplated by this Agreement;
(xxi) each other Contract, individually the loss or termination of which could reasonably be expected to have a Material Adverse Effect or otherwise impair in any material respects the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any operation of its properties or assets to any Encumbrancesthe Business in a manner consistent with the current operation; and
(xviiixxii) all each Contract currently effective agreements subject to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000binding proposal which, if finalized, would be required to be disclosed hereunder.
(b) Except as The Vendor has delivered to the Purchaser complete and correct copies of all Material Contracts that are written, together with all amendments thereto, and accurate descriptions of all material terms of all Material Contracts that are oral, set forth on Section 3.08(bor required to be set forth in Schedule 3.1 (24).
(c) of the Disclosure Schedules: (i) each All Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue Contracts are in full force and effect; (ii) no Live Area Company is effect and enforceable against each party thereto, except as enforcement may be limited by bankruptcy, insolvency and other laws affecting the rights of creditors generally and except that equitable remedies may be granted only in the discretion of a court of competent jurisdiction. There does not exist under any Material Contract any event of default or in breach in any material respect ofevent or condition that, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default after notice or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage lapse of time or the giving of notice or both, would result in a breach or default constitute, in any material respect by any LiveArea Company respects, a violation, breach or event of default thereunder on the part of the Vendor or, to Sellers’ Knowledgethe best knowledge of the Vendor, by any other party thereto (other than any LiveArea Companyexcept as set forth in Schedule 3.1(24)(c) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
Appears in 1 contract
Material Contracts. (aSchedule 4.13(a) Section 3.08(a) sets forth, as of the Disclosure Schedules lists date hereof, a true and complete list of each Contract (excluding the Real Property Leases and the Personal Property Leases), other than purchase orders entered into in the ordinary course of business, to which any Acquired Company is a party that:
(i) (A) is entered into with a top twenty (20) customer of the following contracts Acquired Companies (based on fiscal year 2015 sales) or (B) is entered into with a top ten (10) supplier to the Acquired Companies (based on fiscal year 2015 purchases);
(ii) involves an instrument evidencing or securing any Indebtedness or an agreement with any bank, finance company or similar organization relating to Indebtedness of any Acquired Company;
(iii) restricts any Acquired Company from engaging in any business or activity anywhere in the world;
(iv) is a distributor or sales representative Contract that is not terminable by the Acquired Company party thereto at will or by giving notice of ninety (90) days or less;
(v) is a joint venture or partnership agreement;
(vi) relates to the disposition or acquisition by any Acquired Company after the date of this Agreement of a material amount of assets not in the ordinary course of business;
(vii) is with a product broker or dealer of any Acquired Company under which any Acquired Company was paid more than $250,000 in any fiscal year since January 1, 2013;
(viii) is for the purchase of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which involves consideration in excess of $500,000 per annum, and each agreement for equipment purchased or installed since January 1, 2015 involving consideration in excess of $500,000;
(ix) is an agreement under which any Acquired Company could be required to pay severance or any other agreements amounts (excluding amounts due for services performed prior to termination) to an employee or independent contractor upon a termination of the LiveArea Business (together with all leases listed in Section 3.09(f) employment or engagement of such Person or a sale or transfer by merger, sale or otherwise of any Acquired Company, the assets of any Acquired Company, a portion of the Disclosure SchedulesEquity Securities of an Acquired Company, or the business of any Acquired Company, in each case which is not terminable at will without more than 30 days’ notice;
(x) is an agreement under which any Acquired Company has advanced or loaned any amount to any directors or officers of such Acquired Company or an amount greater than $25,000 to any employees of such Acquired Company;
(xi) provides for the guarantee or assumption by any Acquired Company of any Tax or environmental liability of any Person other than an Acquired Company;
(xii) is (i) for an acquisition of the assets, properties, capital stock or other Equity Interests of any other Person (other than in the ordinary course of business) or (ii) relating to any merger, consolidation or similar business combination transaction involving any Acquired Company, and including, in the case of clause (i) or (ii), where any Acquired Company remains obligated for any material liability, including the payment of any portion of the purchase price, or is subject to continuing material indemnification obligations;
(xiii) other than Permits and sales in the ordinary course of business, is with any Governmental Entity;
(xiv) requires any Acquired Company to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(xv) is a manufacturer’s representative, sales promotion, market research, marketing consulting and advertising, co-marketing or co-promotion agreement involving consideration in excess of $250,000;
(xvi) is an agreement with Fair Trade USA, Pura Vida Coffee, Inc., or Rainforest Alliance, Inc., licensing one or more trademarks or certification marks to the Acquired Companies; or
(A) is not entered into with a customer or supplier of the Acquired Companies or otherwise required to be listed on Schedule 4.13(a), (B) requires any Acquired Company to make payments of more than $500,000 per annum and (C) is not terminable upon less than 365 days prior written notice by any Acquired Company without penalty or premium. (such items referred to in subsections (i) through (xvii) above, collectively, the “Material Contracts”):
(i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts;
(ii) all agreements that relate to (A) the sale of any of the LiveArea Companies’ assets, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
Appears in 1 contract
Material Contracts. Each of the following contracts, agreements or arrangements (each, a “Material Contract”) to which Target or any of its subsidiaries is a party or by which Target or any of its subsidiaries is bound, is set forth in Section 2.18 of the Target Disclosure Schedule:
(a) Section 3.08(a) of the Disclosure Schedules lists each of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):
(i) each agreement the twenty (20) largest distributor, publishing, advertising and agency contracts of Target or Focus Interactive, Inc. taken as a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 whole, and the current calendar year and all shared customer contracts;
(ii) all agreements that relate to the twenty (20) largest advertising contracts of MaxOnline, LLC (for purposes of the this subsection 2.18(a), “largest” shall be determined by measuring, as appropriate, (A) the sale amount of any revenues recognized pursuant to the applicable contract for the month of the LiveArea Companies’ assetsNovember 2003, other than in the ordinary course of business or (B) capital expenditures or development costs or expensesthe amount of expenses incurred under the applicable contract for the month of November 2003), for consideration in excess and the amounts represented by such contracts are substantially representative of $500,000 in typical monthly results during the aggregatefourth quarter of 2003;
(iiib) all agreements that relate to any continuing contract for the acquisition purchase of materials, supplies, equipment or services involving more than $250,000 over the prior twelve months;
(c) any agreements, arrangements or commitments of any businesscharacter (contingent or otherwise) pursuant to which any employee or consultant (other than sales commissions in accordance with Target’s standard commission schedules) is or may be entitled to receive any payment based on the revenues, a material amount of stock earnings or financial performance or assets of any other Person Target or any real property (whether by merger, sale of stock, sale of assets its subsidiaries or otherwise)calculated in accordance therewith;
(ivd) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) any lease of the LiveArea Companiesreal property;
(ve) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or contract involving payments in excess of $350,000, including target level awards under 250,000 per year that expires or may be renewed at the Parentoption of any Person other than Target or any of Target’s short term and long term incentive plans but excluding commissions and any amounts payable subsidiaries so as to Employees by Parent or PFS as a result expire more than one year after the date of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viiif) all existing Benefit Plansany trust indenture, mortgage, promissory note, loan agreement or other contract or instrument for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with GAAP;
(ixg) all currently effective agreements requiring severance payments any contract for capital expenditures in excess of $100,000 in the aggregate to Employees100,000;
(xh) all agreements involving any contract limiting the freedom of Target or relating any of its subsidiaries to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging engage in any line of business, (B) competing to sell, license or otherwise distribute any of its products to any class of customers, or to compete with any Personother Person (including any “person” within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended (Cthe “Exchange Act”)) doing business or in any geographical area territory or (D) soliciting market or engaging during any clientsperiod of time; or any contract which has or could reasonably be expected to have the effect of prohibiting or impairing any current or future business practice of Target or any of its subsidiaries, any acquisition of property by Target or any of its subsidiaries, or the conduct of business by Target or any of its subsidiaries;
(xivi) all currently effective customer agreements granting any contract pursuant to which Target or providing any “most favored nation” rights of its subsidiaries is a lessor of any material machinery, equipment, motor vehicles, office furniture, fixtures or best price protectionother personal property;
(xvj) any contract with any Person with whom Target or any of its subsidiaries does not deal at arm’s length and all currently effective agreements setting forth obligations contracts with any Affiliates of Target;
(k) any agreement of guarantee, support, indemnification (including indemnification for Taxes), assumption or endorsement of, or any similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into Person outside the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contractbusiness;
(xvil) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or contract by which otherwise provide for any equitable remedy or subject any LiveArea Company Target or any of its properties or assets to subsidiaries has granted any Encumbrancesexclusive rights; andor
(xviiim) all currently effective other contracts or agreements (i) which are material to which any LiveArea Company is a party Target or by which any of its assets subsidiaries or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) the conduct of Target’s businesses or the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Companybusinesses of any of Target’s subsidiaries, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; or (ii) no Live Area Company is the absence of which would constitute a Material Adverse Effect on Target or any of its Material Subsidiaries. All Material Contracts are in default written form. Target or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract its applicable subsidiary has performed all obligations in all material respects all of the obligations required to be performed by it under such Material Contract and is not entitled to all benefits under, and is not, to Target’s knowledge, alleged to be in default or in breach in with respect to, any material respect of any such Material Contract; . Each of the Material Contracts is in full force and (iv) effect and there exists no default or event has occurred of default or event, occurrence, condition or act, with respect to Target or any of its subsidiaries or, to Target’s knowledge, with respect to any other contracting party, which, with the passage giving of notice, the lapse of time or the giving happening of notice any other event or bothconditions, would result in become a breach default or event of default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination dateTrue, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true correct and complete copy copies of each written all Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has Contracts have been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessAcquiror.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Ask Jeeves Inc)
Material Contracts. (a) Subject to Section 3.08(a3.24, Section 3.12(a) of the Company Disclosure Schedules lists each Schedule is a true and complete list, as of the date of this Agreement, of all of the following contracts Contracts (excluding Advertising Leases, Access Agreements, Advertising Contracts, Lease Relationship Agreements, the Kiosk Franchise Agreement, Kiosk Business Material Contracts and other agreements Retained Office Leases) to which any of the LiveArea Business Outdoor Group Entities is a party or by which they are bound (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):) and that relate primarily to the Outdoor Business:
(i) each agreement of a LiveArea Company involving aggregate consideration Contracts evidencing Indebtedness in excess of $500,000 during FY 2020 and 50,000 (other than Indebtedness that is required to be repaid in connection with the current calendar year and all shared customer contractsClosing);
(ii) all agreements that relate to (A) the sale Contracts evidencing any obligations of any of the LiveArea Companies’ assetsOutdoor Group Entities with respect to the issuance, sale, repurchase or redemption of any Equity Securities of any of the Outdoor Group Entities (other than the Contracts entered into in connection with the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregateSpin-Off);
(iii) all agreements that relate Leases of personal property under which any of the Outdoor Group Entities is the lessee and is obligated to make payments of more than $20,000 per annum (excluding, for the acquisition avoidance of doubt, any business, a material amount Leases of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwiseSpin-Off Business Assets);
(iv) except for agreements to the extent not included in elsewhere in this Section 3.12(a), any Contract relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) the settlement of any Litigation involving any of the LiveArea CompaniesOutdoor Group Entities and pursuant to which any of the Outdoor Group Entities has outstanding obligations to pay a third party in excess of $50,000 as of the date of this Agreement;
(v) all currently effective agreements between Contracts relating to the acquisition or among a LiveArea Company on disposition of any capital stock or other equity security, business or product line of any other Person entered into at any time during the one hand last two (2) years and Parent pursuant to which any of the Outdoor Group Entities have actual or contingent liabilities or obligations as of the date of this Agreement (excluding, for the avoidance of doubt, any Affiliate of Parent (other than a LiveArea Company) on Contracts entered into in connection with the other handSpin-Off or Contracts that are included in the Spin-Off Business Assets and/or Spin-Off Business Liabilities);
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under Contracts limiting the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result freedom of the transactions contemplated by this Agreement, and all agreements with each staffing firm Company or agency engaged in the provision of temporary workers other Outdoor Group Entity to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging engage in any line of business, (B) competing acquire any entity or compete with any Person, (C) doing business Person or in any market or geographical area or (D) soliciting or engaging except for any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements such Contracts entered into in the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrancesbusiness); and
(xviiivii) all currently effective agreements to which the Bus Contracts and the Miami Bus Agreement;
(viii) any LiveArea Company is a party or by which Contract not otherwise listed above involving reasonably anticipated payments from any of its assets or business is bound that involve amounts exceeding the Outdoor Group Entities to a third party in excess of $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract 50,000 per annum (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, Contracts that are included in the case of a Material Contract with a stated term Spin-Off Business Assets or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Spin-Off Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessLiabilities).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (CBS Outdoor Americas Inc.)
Material Contracts. (a) Section 3.08(a) of the Company Disclosure Schedules lists Schedule sets forth, as of the date of this Agreement, each of the following contracts and Contracts, other agreements than any Employee Plans, which have terms set forth in the below categories that are in effect as of the LiveArea Business date hereof to which any Acquired Company is a party or otherwise bound (a Contract responsive to any of the following categories, or any other Contract that is with a Material Carrier or a Material Client, in each case together with all leases listed in Section 3.09(f) of the Disclosure Schedulesamendments and modifications thereto, collectively, the being hereinafter referred to as a “Material ContractsContract”):
(i) each agreement of any Contract governing a LiveArea Company partnership, joint venture, minority interest or other similar arrangement involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts;
(ii) all agreements that relate to (A) the sale of co-investment between any of the LiveArea Acquired Companies’ assets, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand hand, and Parent one or any Affiliate of Parent (other than a LiveArea Company) more third parties, on the other hand;
(ii) any (1) Contract that purports to materially limit (A) the right of the Acquired Companies to compete with any Person or in any lines of business or (B) the geographic area in which the Acquired Companies may so engage in such business, (2) Contract that obligates the Acquired Companies to purchase or otherwise obtain any material product or service exclusively from a single party for aggregate annual spend of greater than $1,000,000, (3) material Contract that contains a “most favored nation” or other similar term providing preferential pricing or treatment to a third party or (4) material Contract that grants exclusive rights to license, market, sell or deliver any product or service of the Acquired Companies, or to exclusively supply any product or service to the Acquired Companies;
(iii) any Contract (1) under which any Acquired Company has outstanding Indebtedness for borrowed money (other than from or to another Acquired Company) or any financial guaranty thereof (whether incurred, assumed, guaranteed or secured by any asset) in an amount in excess of $2,000,000 or (2) under which any Acquired Company has directly or indirectly guaranteed or assumed Indebtedness of any Person (other than any Acquired Company) in an amount in excess of $2,000,000;
(iv) any material Contract for annual consideration in excess of $1,000,000 pursuant to which any Acquired Company has granted to any Person, or has been granted, a license with respect to any Intellectual Property Rights, other than Contracts (1) where an Acquired Company has been granted a license to commercially available “off-the-shelf” software or hardware that have not been materially modified or modified beyond standard or commercially available customization or (2) in which grants of non-exclusive rights to use Intellectual Property Rights are incidental to and not material to performance under the agreement;
(v) any Contract (1) entered into in the twelve (12) month period prior to the date hereof for the acquisition or disposition, directly or indirectly, of assets, capital stock or other equity interests of any Person for initial consideration in excess of $5,000,000 or (2) that includes any continuing “earn out” or other similar contingent payment obligations outstanding on the part of the Company or any of its Subsidiaries in connection with acquisitions by the Company or any of its Subsidiaries of assets or capital stock or other equity interests of any Person for which the current accrual in the books and records of the Company exceeds $2,500,000;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association Contract entered into in the last twelve (12) months pursuant to which a LiveArea an Acquired Company is a partyagreed to settle, waive, or otherwise compromise any actual or threatened (in writing) Proceeding or under which an Acquired Company has continuing material obligations, in each case, other than Contracts regarding settlements, waivers or compromises of Proceedings that involve the payment of cash by or to the Company or any Subsidiary of the Company in an amount not exceeding $1,000,000;
(vii) all currently effective employment any Contract that contains a put, call or consulting agreements providing for annual salaries similar right pursuant to which the Acquired Companies could be required to purchase or payments in excess sell, as applicable, any equity interests of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent Person or PFS as a result any assets of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Companyany Person;
(viii) all existing Benefit Plansany Contract that grants any rights of first refusal or rights of first offer to any Person with respect to any equity interests or material assets of an Acquired Company;
(ix) all currently effective agreements requiring severance payments any Contract pursuant to which any Acquired Company is the lessee of, holds or uses, in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan toeach case, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into outside the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose practices, equipment or other tangible personal property owned by any third party for an annual rent in excess of such contract$1,000,000;
(xvix) all currently effective agreements involving any joint ventureContract that obligates any Acquired Company to make any future advance, partnershiploan, strategic allianceextension of credit or capital contribution to, shareholders’ agreementor other investment in, joint development or similar arrangementany Person in an amount in excess of $1,000,000 individually and $3,000,000 in the aggregate;
(xviixi) all agreements from any Contract that obligates any Acquired Company to make any future capital expenditure over any consecutive twelve (12) month period in an amount in excess of $1,000,000 individually and $3,000,000 in the prior three aggregate;
(3xii) years involving any resolution Contract that is a Company Lease where annual base rent is in excess of $1,000,000;
(xiii) any material Contract with a Governmental Authority (other than any Company Permits); or
(xiv) the Interest Rate Swaps.
(b) No Acquired Company is in breach of, or settlement default under, the terms of any actual Material Contract, and no event has occurred that with notice or threatened litigationlapse of time or both would constitute a default of any obligations thereunder by any Acquired Company, arbitrationand no Acquired Company has received written notice of any such default or event, claim or other dispute whichof any alleged default or of any termination or non-renewal of any Material Contract, except in each case where such breach, default, termination or non-renewal would not reasonably be expected to be, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any material to the Acquired Companies, taken as a whole. To the Knowledge of its properties or assets the Company, as of the date hereof, no other party to any Encumbrances; Material Contract is in breach of or default under the terms of any Material Contract, and
(xviii) all currently effective agreements , to which the Knowledge of the Company, as of the date hereof, no event has occurred that with notice or lapse of time or both would constitute a default of any LiveArea Company is obligations thereunder by any such other party, except in each case where such breach or default would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) whole. Except as set forth on Section 3.08(b) would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, assuming each Material Contract constitutes the legal, valid and binding agreement of the Disclosure Schedules: (i) other party thereto, each Material Contract is a valid and binding on obligation of the LiveArea Acquired Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other which is party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue is in full force and effect; , except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, examinership, fraudulent transfer, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights generally and (ii) no Live Area Company is in default equitable remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. Except as would not reasonably be expected to be, individually or in breach in any the aggregate, material respect ofto the Acquired Companies, taken as a whole, as of the date hereof, there are no disputes pending or, to Sellers’ Knowledgethe Knowledge of the Company, alleged threatened in writing with respect to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any True and complete copies of each Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has have been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach Parent prior to the date of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Businessthis Agreement.
Appears in 1 contract
Sources: Merger Agreement (Aon PLC)
Material Contracts. (a) Section 3.08(a3.19(a) of the Disclosure Schedules lists Schedule sets forth each of the following contracts Contracts (other than with respect to any Plans) to which the Reorganized Company is a party, or under which any of its assets or properties is bound and other agreements in effect as of the LiveArea Business date of this Agreement (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the such Contracts being “Material Contracts”):), in each case, except for the Contracts to be assigned to an Affiliate of the Seller pursuant to the Pre-Closing Restructuring:
(i) each agreement any Contract for the purchase of a LiveArea Company involving materials, supplies, goods, services, equipment or other assets (other than purchase orders) providing for aggregate consideration payments within the last twelve calendar months prior to the date of this Agreement in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contractsR$50,000;
(ii) all agreements any Contract that relate to (A) is with a customer, reseller or distributor in connection with the sale of any products and services of the LiveArea Companies’ assetsReorganized Company, other than in and which provides for aggregate payments or receivables within the ordinary course last twelve calendar months prior to the date of business or (B) capital expenditures or development costs or expenses, for consideration this Agreement in excess of $500,000 in the aggregateR$50,000;
(iii) any Contract pursuant to which the Reorganized Company has been appointed a partner, reseller or distributor or manufacturer, or has appointed another party as a partner, reseller, or distributor or manufacturer, and which provides for aggregate payments or receivables within the last twelve calendar months prior to the date of this Agreement in excess of R$50,000;
(iv) any Contract concerning the establishment or operation of a partnership or joint venture;
(v) all agreements that relate Contracts containing provisions restricting the right of the Reorganized Company (or, as of immediately following the Closing, its Affiliates) to compete with any Person or from engaging in any line of business;
(vi) all Contracts containing provisions prohibiting the Reorganized Company (or, as of immediately following the Closing, its Affiliates) from soliciting any Person to enter into a business or employment relationship with the Reorganized Company;
(vii) any Contract entered into within the three year period prior to the date hereof relating to the acquisition of any business, a material amount of stock or assets of any other Person or any real property disposition (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of any material business, corporation, partnership, association, joint venture or other business organization, or any division, operating unit or product line of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Reorganized Company with respect to which there remains outstanding obligations on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result part of the transactions contemplated by this Agreement, and all agreements with each staffing firm Seller or agency engaged in its Affiliates (including the provision of temporary workers to a LiveArea Reorganized Company);
(viii) all existing Benefit Plansmaterial Company IP Agreements;
(ix) all currently effective agreements requiring severance payments in excess Contracts relating to Indebtedness of $100,000 in the aggregate Reorganized Company or pursuant to Employeeswhich the Quotas or any material assets of the Reorganized Company are subject to any Encumbrances, other than Permitted Encumbrances;
(x) all agreements involving Contracts with any Governmental Authority, and which provides for aggregate payments or relating receivables within the last twelve calendar months prior to an outstanding loan to, or investment in, any Personthe date of this Agreement in excess of R$50,000;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset Contract for capital expenditures in excess of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to ClosingR$50,000;
(xii) all currently effective Real Property Leasesany Contract involve the settlement, release, compromise or waiver of any material rights, Actions, duties or liabilities for an amount in excess of R$50,000 or that involves any non-monetary remedy affecting the Company (other than customary confidentiality, non-disparagement, release and other such obligations that are ancillary to any settlement, waiver or compromise that is otherwise permitted pursuant to this clause (xii);
(xiii) all currently effective agreements that provide for exclusive dealings Contracts between the parties thereto Reorganized Company and any of its officers, managers, partners or other Affiliates, and which purport provides for aggregate payments or receivables within the last twelve calendar months prior to restrict or limit any LiveArea Company from (A) engaging the date of this Agreement in any line excess of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clientsR$50,000;
(xiv) all currently effective customer agreements granting any Contract containing “take or providing any pay”, “most favored nationrequirements” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually similar provisions obligating any Person to provide the quantity of goods or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or services required by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Companyanother Person, and to Sellers’ Knowledge, each other party thereto, subject which provides for aggregate payments or receivables within the last twelve calendar months prior to the Bankruptcy Exception, and immediately following the consummation date of the transactions contemplated hereby, shall continue this Agreement in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect excess of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.R$50,000;
Appears in 1 contract
Material Contracts. (a) Schedule 5.07 sets forth, by reference to the applicable subsection of this Section 3.08(a5.07, each Contract (and in the case of an oral Contract, the material terms of such Contract) that has not expired or been terminated (except for such Contracts under which any provisions survive post-expiration or post-termination), and to which the Seller is a party in connection with the operation of the Disclosure Schedules lists each Business or to which any Purchased Assets are bound:
(i) involving aggregate consideration in excess of $50,000 and that cannot be cancelled without penalty or without more than thirty (30) days’ notice;
(ii) providing for the indemnification by Seller of any Person or the assumption of any Tax or other Liability of any Person;
(iii) (Intentionally Deleted) 4846-4639-0869
(iv) pertaining to any broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting, and advertising Contract;
(v) involving any (A) employment relationship (including employment Contracts) or (B) independent contractor services, management services, consulting services, support services, or any other similar services;
(vi) governing the borrowing of money or the Guarantee or repayment of Indebtedness or the granting of any Encumbrance on any property or asset of the following contracts Seller;
(vii) concerning the use of or restricting the use of any Intellectual Property, including development, assignment, and other agreements licenses therefor;
(viii) involving the lease, occupancy, management, or operation of the LiveArea Business Leased Real Property;
(together with all leases listed ix) providing for the lease of (by or from the Seller) personal property and that provide for potential annual aggregate payments in Section 3.09(fexcess of $50,000;
(x) involving a customer of the Disclosure SchedulesBusiness that entails the delivery after the Closing Date of products or services in exchange for annual aggregate payments reasonably expected to exceed $50,000;
(xi) involving a vendor that is reasonably expected to involve payments to such vendor in excess of $50,000 during the twelve (12) month period following the Closing Date;
(xii) with any Governmental Authority;
(xiii) limiting or purporting to limit the ability of the Seller to compete in any line of business or with any Person or in any geographic area or during any period of time, including exclusivity arrangements, non-competition, or similar restrictions;
(xiv) relating to a joint venture, partnership, or similar arrangements;
(xv) providing for the grant to any Person of any option, right of first refusal, or preferential or similar right to purchase any of the assets or properties of the Seller, including “most favored nation” pricing arrangements, special warranties, agreements to take back or exchange goods, and consignment arrangements;
(xvi) granting a power of attorney to any Person;
(xvii) involving any labor organization, union, or association, including any collective bargaining Contract relating thereto; and 4846-4639-0869
(xviii) any other material Contract not previously identified in the foregoing clauses (i)-(xvii). The Contracts described in the foregoing clauses (i)-(xviii) are each, individually, a “Material Contract” and are, collectively, the “Material Contracts.”):
(i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts;
(ii) all agreements that relate to (A) the sale of any of the LiveArea Companies’ assets, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except The Seller has provided to the Buyer true and complete copies of each Material Contract, as set forth on Section 3.08(b) of amended through the Disclosure Schedules: (i) each Closing Date. Each Material Contract is valid a valid, binding, and binding on enforceable obligation of the LiveArea Company party thereto and Seller and, to Seller’s Knowledge, the other parties thereto, enforceable in accordance with its terms against such LiveArea Companyterms, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue is in full force and effect; . With respect to the Material Contracts listed on Schedule 5.07, (iii) no Live Area Company neither the Seller nor, to Seller’s Knowledge, any other party to any Material Contract is in default under or in breach in any material respect of, or, to Sellers’ Knowledge, violation of (or is alleged to be in breach in default under of or violation of), or has provided or received any material respect ofnotice of any intention to terminate, any Material Contract; , (ii) to Seller’s Knowledge, no event or circumstance has occurred that, with notice or lapse of time or both, would constitute such a default or violation or would cause or permit the acceleration, termination, or other changes to any right or obligation or the loss of any benefit thereunder, (iii) to Sellers’ Knowledge, each other party to each Material Contract the Seller has performed all obligations in all material respects required to be performed by it not released any of its rights under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and , (iv) no event party to a Material Contract has occurred which, with repudiated any of the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company terms thereof or, to Sellers’ Knowledgethe Knowledge of the Seller, by threatened to terminate, cancel, or not renew any party thereto Material Contract, and (other than any LiveArea Companyv) there are no disputes pending or, to the Knowledge of the Seller, threatened under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a3.14(a) of the Seller Disclosure Schedules lists each Schedule lists, as of the date hereof, any Contract to which any Acquired Company is a party and that is (i) used primarily in the Run-Off Business or (ii) is a Contract under which any Acquired Company will have continuing obligations after the Closing that meets any of the following contracts criteria and other agreements of the LiveArea Business is not an Insurance Contract, Producer Agreement, reinsurance agreement, reinsurance treaty or Intercompany Agreement (together with all leases listed in Section 3.09(f) of the Disclosure Scheduleseach, collectively, the a “Material ContractsContract”):) and that:
(i) each agreement of a LiveArea requires expenditures by an Acquired Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts50,000 in any twelve (12)-month period;
(ii) all agreements that relate provides for payments to (A) the sale of any of the LiveArea Companies’ assets, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration be received by an Acquired Company in excess of $500,000 50,000 in the aggregateany twelve (12)-month period;
(iii) all agreements that relate relates to the incurrence by an Acquired Company of any indebtedness in an aggregate amount in excess of $50,000 during the term of the Contract;
(iv) relates to the acquisition of any business, a material amount of stock or assets of any other Person or any real property disposition (whether by merger, sale or purchase of stock, sale or purchase of assets or otherwise);
) lease, option to sell or lease by an Acquired Company of any material assets or any material business (iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;transactions involving Investment Assets); - #PageNum# - 703550379
(v) all currently effective agreements between restricts or among a LiveArea Company on the one hand and Parent limits an Acquired Company’s ability to freely engage in any business, compete with other entities, market any product or solicit employees or customers, or provides for “exclusivity” or any Affiliate of Parent (other than a LiveArea Company) on the other handsimilar requirement;
(vi) all currently effective collective bargaining agreements contains indemnifications, guarantees or agreements with keep-▇▇▇▇▇ or similar undertakings made or supported by any labor organization, union or association to which a LiveArea Company is a partyAcquired Company;
(vii) all currently effective employment is a collective bargaining agreement or consulting agreements providing for annual salaries other Contract or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and arrangement with any amounts payable to Employees by Parent labor union or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Companyany employee organization;
(viii) all existing Benefit Plansrelates to the license to an Acquired Company of any material Intellectual Property or the license from an Acquired Company of any material Intellectual Property, other than “shrink wrap” or “click through” licenses or licenses of generally-available “off the shelf” computer software or databases;
(ix) all currently effective agreements requiring severance payments in excess Contract (however named) involving a sharing of $100,000 in the aggregate to Employeesprofits, losses, costs or liabilities by any Acquired Company with any other Person;
(x) all agreements involving or relating to an outstanding loan to, or investment in, power of attorney of any PersonAcquired Company that is currently effective and outstanding;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset Contract relating to indemnification of any LiveArea member, stockholder, manager, director or officer of any Acquired Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;the Organizational Documents; or
(xii) all currently effective Real Property Leases;is an obligation to enter into any of the foregoing.
(xiiib) all currently effective agreements that provide for exclusive dealings between With respect to each Material Contract, assuming the due authorization, execution and delivery thereof by the other party or parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of businessthereto, (Bi) competing each Material Contract is a valid and binding obligation of the applicable Acquired Company and, to the Knowledge of Seller, as of the date hereof, each other party or parties thereto, in accordance with any Personits terms and is in full force and effect, subject to the Bankruptcy and Equity Exceptions, (Cii) doing business the applicable Acquired Company is not, and, to the Knowledge of Seller, no other party thereto is in any geographical area default in the performance, observance or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations fulfillment of any LiveArea Company obligation, covenant or condition contained in each of the Material Contracts and (iii) to indemnify the Knowledge of Seller, as of the date hereof, no event has occurred that would constitute a default under any third partyMaterial Contract, other than customerexcept, vendorwith respect to the foregoing clauses (i), licensing (ii) and other agreements entered into the ordinary course of business consistent with past practice (iii), where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute whichfailures to be valid and binding and in full force and effect and defaults would not, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea reasonably be likely to have a Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000Material Adverse Effect.
(bc) Except as set forth on Section 3.08(b) Copies of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has have been made available to Buyers. The LiveArea Business has not incurred Purchaser, except to the extent that any material liability under any such Material Contract arising from a breach of an express or implied warranty regarding a product or service is identified as confidential in Section 3.14(a) of the LiveArea BusinessSeller Disclosure Schedule. - #PageNum# - 703550379
(d) For the avoidance of doubt, or received a claim regarding any such liability based upon alleged breach of Material Contracts shall not include Contracts that will be assigned, following the date hereof but prior to the Closing, to an express or implied warranty regarding a product or service Affiliate of the LiveArea Businessrelevant Acquired Company that is not an Acquired Company.
Appears in 1 contract
Sources: Stock Purchase Agreement (White Mountains Insurance Group LTD)
Material Contracts. (a) Section 3.08(a) of the Disclosure Schedules lists each of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):
(i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts;
(ii) all agreements that relate to (A) the sale of any of the LiveArea Companies’ assets, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, Except for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into after the date hereof in the ordinary course of business consistent with past practice where such indemnification obligations are not prior practices, or as set forth on Schedule 5.11 (the primary purpose "Material Contracts"), no Asset Selling Corporation is a party to or bound by:
(i) any contract, agreement or other arrangement for the purchase of such contractInventories, or other personal property with any supplier or for the furnishing of services to the Business other than clinical study agreements (A) providing for financial commitments in excess of $50,000 and extending beyond one year from the date hereof or (B) providing for financial commitments in excess of $100,000;
(xviii) all currently effective agreements involving any joint venturecontract, partnership, strategic alliance, shareholders’ agreement, joint development agreement or similar arrangementother arrangement for the sale of Inventories or other personal property or for the furnishing of services by the Business with firm commitments in excess of three years from the date hereof;
(xviiiii) all any broker, distributor, dealer, manufacturer's representative, franchise or agency agreements from related to the prior three (3) years involving any resolution or settlement Business the terms of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for financial commitments in excess of $100,000;
(iv) any equitable remedy contracts or subject agreements relating to indebtedness for borrowed money, factoring arrangements, sale and leaseback transactions, deferred purchase price of property and other similar financing transactions relating to the Business with respect to which an Asset Selling Corporation is an obligor in excess of $100,000;
(v) any LiveArea Company research and development agreements relating to the Business the terms of which provide for aggregate commitments to be paid by or any to an Asset Selling Corporation in excess of its properties or assets to any Encumbrances$100,000; and
(xviiivi) all currently effective agreements to which any LiveArea Company is a party agreement entered into since March 1, 1995 providing for the acquisition or by which disposition of any Conveyed Asset and having an aggregate value in excess of its assets $1,000,000, other than the sale of Inventories in the ordinary course of business of the Business consistent with past practice or business is bound that involve amounts exceeding $500,000the sale of obsolete equipment; and
(vii) any lease or occupancy agreement for any portion of the Real Property.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: disclosed in Schedule 5.11, (i) each Material Contract is valid and binding on the LiveArea Company Asset Selling Corporation that is a party thereto and enforceable in accordance with its terms against such LiveArea Companythereto, and to Sellers’ Knowledgethe Knowledge of Pfizer, each the other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue is in full force and effect; , and (ii) no Live Area Company Asset Selling Corporation is in default or in breach in any material respect of, oror default under, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with which breach or default would reasonably be expected, individually or in the passage of time or the giving of notice or bothaggregate, would to result in a breach or default Material Adverse Effect.
(c) Except for agreements entered into after the date hereof in any material respect by any LiveArea Company orthe ordinary course of business of the Business consistent with prior practices, to Sellers’ Knowledge, by any party thereto (other than any LiveArea CompanySchedule 5.11(e) under any Material Contract. No counterparty to any Material Contract (excluding statements identifies all suppliers of work) has provided written notice production materials related to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
Appears in 1 contract
Sources: Asset Purchase Agreement (American Medical Systems Holdings Inc)
Material Contracts. (a) Section 3.08(a2.14(a) of the Disclosure Seller Schedules lists each sets forth, as of the date of this Agreement, a correct and complete list of all of the following contracts types of Contracts that (i) the Transferred Company is party to or by which its assets, rights and other agreements of properties are bound, (ii) constitute Assumed Contracts, (iii) by which the LiveArea Business Purchased Assets are bound, or (together with all leases listed in Section 3.09(fiv) of the Disclosure Schedules, Assumed Liabilities are affected or created (collectively, the “Material Contracts”):
(i) each agreement Contracts that require future aggregate payments of a LiveArea Company involving aggregate consideration more than $50,000 in excess of $500,000 during FY 2020 and the current any calendar year and all shared customer contractsare not cancellable without penalty;
(ii) all agreements that relate loan agreements, indentures, letters of credit, mortgages, notes, guaranties of Indebtedness of another Person, and other debt instruments evidencing Indebtedness and any agreement relating to the mortgaging or pledging or otherwise placing a Lien (A) the sale of any of the LiveArea Companies’ assets, other than in the ordinary course of business or (Ba Permitted Lien) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregateon any Purchased Asset;
(iii) all agreements Contracts that relate grant the Seller or the Transferred Company a license, an option to, or other rights in or to Intellectual Property Rights owned or controlled by a third Person (other than (a) Contracts entered into with employees, contractors, or consultants in the Ordinary Course of Business, (b) non-exclusive licenses granted to the acquisition Seller in the Ordinary Course of any businessBusiness under which the grant of rights are incidental to the services performed or products purchased, a material amount of stock or assets of any other Person or any real property and (whether by merger, sale of stock, sale of assets or otherwisec) Shrink-Wrap Code and Open Source Software);
(iv) except for agreements relating Contracts under which the Seller or the Transferred Company grants to trade receivablesany third Person a license, all agreements relating sublicense, option, or other right in or to Indebtedness the Seller IP (includingin each case other than non-exclusive licenses granted to distributors, without limitationcustomers, guarantees) suppliers, or vendors in the Ordinary Course of Business or under which the LiveArea Companiesgrant of rights are incidental to the services performed or products purchased);
(v) all currently effective agreements between Contracts that provide for a royalty, dividend or among a LiveArea Company similar arrangement based on the one hand and Parent revenues or profits of the Seller or the Transferred Company or any Affiliate of Parent (other than a LiveArea Company) on the other handcontract or agreement involving fixed price or fixed volume arrangements;
(vi) all currently effective collective bargaining agreements Contracts related to any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or agreements with any labor organization, union other Contract for distribution or association to which a LiveArea Company is a partyuse of the Seller Products (other than for direct sales by the Seller of the Seller Products);
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and Contracts with any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea CompanyGovernmental Body;
(viii) all existing Benefit PlansContracts relating to the ownership of or investment in any business or enterprise (including investments in joint ventures and minority equity investments);
(ix) all currently effective agreements requiring severance payments in excess Contracts that, pursuant to its terms, the Seller or the Transferred Company has an exclusive arrangement with another Person, including Contracts relating to rights of $100,000 in the aggregate first opportunity, first negotiations, or first refusal, take or pay, minimum purchase commitments or rights to Employeesobtain services or products on a most-favored customer basis;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance Contracts that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging limit or purport to limit the ability of the Seller, the Transferred Company or their respective Affiliates to (I) compete in any line of business, (BII) competing compete with any particular Person, (CIII) doing business compete in any geographical geographic area or (DIV) soliciting solicit or engaging engage any clientsemployees, customer, vendor or service provider or (B) would so limit the freedom of Purchasers or their Affiliates in any manner set forth in the foregoing (I)-(IV) after the Closing;
(xi) Contracts that provide for the sale of any Purchased Asset (other than sales in the Ordinary Course of Business) or the grant of any preferential rights to purchase any Purchased Asset;
(xii) Contracts whereby the Seller or the Transferred Company makes “most favored nations” or “most favored price” commitments to third Persons;
(xiii) Contracts providing for the payment or other compensation upon the sale of all or any portion of the Business’ assets;
(xiv) all currently effective customer agreements granting Contracts related to the settlement of any Actions or providing threatened Actions, including with any “most favored nation” rights or best price protectionBusiness Service Provider;
(xv) all currently effective confidentiality, noncompetition, nonsolicitation, invention assignment or other restrictive covenant agreements setting forth obligations of with any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contractBusiness Employee or Business Contingent Worker;
(xvi) all currently effective agreements involving Labor Agreements or other Contracts with any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangementLabor Entity;
(xvii) all agreements from Leases;
(xviii) Contracts with any Affiliate of the prior three Seller or the Transferred Company;
(3xix) years Contracts involving any resolution or settlement of any actual or threatened litigationpensions, arbitrationdeferred compensation, claim severance, change in control, retention, transaction-related or other dispute which, individually similar arrangements;
(xx) surety or in the aggregate, involve amounts exceeding $250,000 guarantee Contracts or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets other similar undertakings with respect to any Encumbrancescontractual performance; and
(xviiixxi) all currently effective agreements Contracts relating to which any LiveArea Company is a party an acquisition, divestiture, merger or similar transaction (excluding arrangements in the Ordinary Course of Business) containing representations, covenants, indemnities or other obligations (including indemnity, “earn-out” or other contingent obligations) that are still in effect or by which the Seller or the Transferred Company has any of its assets continuing or business is bound that involve amounts exceeding $500,000potential Liabilities.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Each Material Contract is in full force and effect, constitutes legal, valid and binding on obligations of the LiveArea Seller or the Transferred Company party thereto and, to the Knowledge of the Seller, the other parties thereto, and is enforceable in accordance with its terms against such LiveArea Companyterms, and to Sellers’ Knowledge, each other party thereto, subject except to the Bankruptcy Exception, and immediately following extent that enforceability may be limited by Enforceability Limitations. Subject to the consummation obtaining of the transactions contemplated herebyconsents set forth on Section 2.2 of the Seller Schedules, shall continue in full force and effect; (ii) there exists no Live Area Company is in default default, or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or that upon the giving of notice or the passage of time, or both, would result in give rise to a breach or material default in any material respect the performance by any LiveArea Company the Seller or its Affiliate to the applicable Material Contract or, to Sellers’ Knowledgethe Knowledge of the Seller, by any other party thereto (other than any LiveArea Company) under any to such Material Contract, of their respective obligations thereunder. No counterparty to any Material Contract (excluding statements of work) The Seller has provided written notice made available to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of Purchasers a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true correct and complete copy of each written Material Contract (Contract, including any amendments, waivers or other modifications thereto. Neither the Seller nor any of its Affiliates has received any written notice or renewals relating theretoother written communication regarding any violation or breach of, but excluding statements or default under, a Material Contract. Neither the Seller nor any of work) its Affiliates has been made available to Buyers. The LiveArea Business has not incurred waived any of its material liability rights under any Material Contract arising from to which it is a breach of an express or implied warranty regarding a product or service of the LiveArea Businessparty. No Person is currently renegotiating, or received currently has a claim regarding right pursuant to the terms of any Material Contract to renegotiate, any amount paid or payable to the Seller or any of its Affiliates under or any other material term or provision of such liability based upon alleged breach Material Contract. Since January 1, 2022, neither the Seller nor its Affiliates or the counterparty has threatened in writing to terminate or refuse to perform its obligations under any Material Contract (regardless of an express or implied warranty regarding a product or service of whether such Person has the LiveArea Businessright to do so under such Contract).
Appears in 1 contract
Sources: Securities and Asset Purchase Agreement (908 Devices Inc.)
Material Contracts. (a) Section 3.08(aSchedule 4.13(a) of the Disclosure Schedules lists each Letter sets forth a complete list of all material contracts relating to the Business in effect on the date of this Agreement (the "Material Contracts"), including the following contracts Contracts: all (i) material security agreements and other agreements to which Seller or any Subsidiary is a party involving the borrowing of money by, or any extension or credit to, or any guarantee in respect of indebtedness by, Seller (in connection with the LiveArea Business Business) or any Subsidiary (together in connection with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):
(i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts;
Business); (ii) all material agreements that relate or commitments, individually, or in the aggregate, to make capital expenditures with respect to the Business; (Aiii) the sale agreements to sell, lease or otherwise dispose of any assets or properties of Seller (in connection with the LiveArea Companies’ assets, Business) or any Subsidiary (in connection with the Business) involving more than $500,000 other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate and other than pursuant to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
MTI Transaction; (iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness limiting the freedom of Seller (including, without limitation, guaranteesin connection with the Business) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent Subsidiary (other than a LiveArea Companyin connection with the Business) on the other hand;
(vi) all currently effective collective bargaining agreements to engage or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging compete in any line of business, (B) competing business or in any geographic area or with any Person, ; (Cv) doing business in any geographical area or real property and material personal property Leases; (Dvi) soliciting or engaging any clients;
(xiv) all currently effective customer joint venture agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective partnership agreements to which Seller (in connection with the Business) or any LiveArea Company Subsidiary (in connection with the Business) is a party or by which any of its assets or party, including contractual arrangements with business is bound partners that involve royalty payments or similar revenue sharing arrangements; (vii) Contracts, if any, of Seller (in connection with the Business) or any Subsidiary (in connection with the Business) with the fifty (50) Persons that accounted for the highest dollar amounts exceeding paid by Seller or any Subsidiary, taken as a whole, over the twelve (12) month period ended March 1, 2001 and the Contracts, if any, of Seller (in connection with the Business) or any Subsidiary (in connection with the Business) with the fifty (50) Persons that accounted for the highest dollar amounts received by Seller or any Subsidiary over the twelve (12) month period ended March 1, 2001 except for contracts involving payment or receipt by Seller and the Subsidiaries taken as a whole that are less than $500,000.
100,000 individually; (bviii) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject material agreements applicable to the Bankruptcy ExceptionSeller (in connection with the Business) or any Subsidiary (in connection with the Business) that require the payment of commissions or similar channel expenses such as distribution, sales representative and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effectsimilar agreements; (iiix) no Live Area Company is material management service, consulting or similar type agreements, applicable to the Seller (in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, connection with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea CompanyBusiness) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract Subsidiary (in connection with the Business); (x) prior warranties or other similar undertakings with respect to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.contractual performance extended by
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Micron Electronics Inc)
Material Contracts. (a) Except as set forth in, or as filed as an exhibit to, the SEC Reports filed before the date of this Agreement or as set forth in Section 3.08(a3.01(i) of the Disclosure Schedules lists each Letter, neither the Company nor any of the following contracts and other agreements of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):its Subsidiaries is a party to or bound by any:
(i) each employment agreement of a LiveArea (other than those that are terminable at will by the Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contractsor such Subsidiary without cost or penalty);
(ii) all agreements that relate to (A) contract, whether as licensor or licensee, for the sale license of any patent, know-how, trademark, trade name, service mark, copyright or other intangible asset (other tha▇ ▇▇n-negotiated licenses of commercial off-the-shelf computer software), except for the LiveArea Companies’ assets, other than in Franchise Agreements (as defined herein) and the ordinary course of business or Sho-Lodge Agreement (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregateas defined herein);
(iii) all loan or guaranty agreement, indenture or other instrument, contract or agreement under which any money has been borrowed or loaned or any note, bond or other evidence of indebtedness has been issued;
(iv) (other than the agreements listed in clause (iii), the Real Property Leases, the Space Leases or the Permitted Encumbrances) mortgage, security agreement, conditional sales contract, capital lease or similar agreement with total payments in excess of $50,000 per year or that relate effectively creates a Lien on any assets of the Company or any of its Subsidiaries;
(v) contract restricting the Company or any of its Subsidiaries in any material respect from engaging in business or from competing with any other parties, including, but not limited to, geographic limitations on the Company's or any of its Subsidiaries' activities, except for the Franchise Agreements and the Sho-Lodge Agreement;
(vi) written agreement relating to the reorganization or merger of the Company or any Subsidiary that has not been consummated as of the date hereof;
(vii) partnership or joint venture agreement;
(viii) collective bargaining agreement;
(ix) contract that is a "material contract" (as defined in Item 601(b)(10) of Regulation S-K under the Securities Act);
(x) restaurant services, management, royalty or similar agreement with total payments by the Company or any Subsidiary in excess of $50,000 per year;
(xi) agreements relating to the acquisition of any businessmaterial assets or relating to the merger or consolidation with any other entity that have (A) not been consummated as of the date hereof or (B) that, a if consummated as of the date hereof, have any remaining outstanding material amount monetary obligations;
(xii) investment banking agreement of stock any kind or assets nature whatsoever;
(xiii) except for negotiable instruments in the process of collection, power of attorney outstanding or contract, commitment or liability (whether absolute, accrued, contingent or otherwise) as guarantor, surety, cosigner, endorser, co-maker, or indemnitor for obligations for funded debt in respect of the contract or commitment of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,00050,000; (xiv) except for Ordinary Course Contracts (as defined herein), including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged other contracts (other than those listed in the provision of temporary workers to a LiveArea Company;clauses (i) through (xiii) above)
(viiiA) all existing Benefit Plans;
with a term longer than one (ix1) all currently effective agreements requiring severance year from the date hereof that involve payments by the Company and/or its Subsidiaries in excess of $50,000 per year; or (B) with a term less than one (1) year from the date hereof that involve payments by the Company and/or its Subsidiaries in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contractterminable without premium or penalty on less than 30 days' notice;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
Appears in 1 contract
Sources: Merger Agreement (Shoneys Inc)
Material Contracts. (a) Section 3.08(aSchedule 4.10(a) of the Disclosure Schedules lists each Contract falling into any of the following contracts and categories of Contracts, other agreements than any Company Benefit Plan or Real Property Leases, to which a VH Company is a party or by which it is bound as of the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):date hereof:
(i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and Contracts for the current calendar year and all shared customer contracts;
(ii) all agreements that relate to (A) the pending sale of any of the LiveArea Companies’ assets, Assets of any VH Company other than in the ordinary course Ordinary Course of business or (B) capital expenditures or development costs or expensesBusiness, for consideration in excess of $500,000 1,000,000;
(ii) Contracts relating to Financial Indebtedness (whether incurred, assumed, guaranteed or secured by any asset) involving amounts in the aggregateexcess of $2,500,000;
(iii) all agreements that relate Contracts or a series of related Contracts with any Person (other than the VH Companies), including any option agreement, relating to the acquisition or disposition of any business, all or a material amount substantial portion of the stock or the assets of any other Person Person, or any material real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except Contracts or a series of related Contracts with the ten largest participating retail vision care providers based on claims expense for agreements relating the fiscal year ended December 31, 2019 on a consolidated basis with respect to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea CompaniesVH Companies taken as a whole;
(v) all currently effective agreements between Contracts or among a LiveArea Company on the one hand and Parent or series of related Contracts with any Affiliate of Parent Person (other than the VH Companies or any participating retail vision care providers in the network of the VH Companies) for services or for the purchase, rental or use of real property or personal property, including equipment, vehicles, and other personal property or fixtures, in each case pursuant to which a LiveArea Company) on the other handVH Company has ongoing or future payment obligations of greater than $2,500,000 annually;
(vi) Contracts or a series of related Contracts with any Person (other than the VH Companies) reasonably anticipated to account for at least $10,000,000 in aggregate revenues for the fiscal year ended December 31, 2019;
(vii) any joint venture, partnership, limited liability company or other similar Contracts (including any Contract providing for joint research or development);
(viii) all currently effective collective bargaining Reinsurance Agreements;
(ix) Contracts relating to third-party administration, claims administration or other insurance policy administration agreements providing for material administration services under any Reinsurance Agreement;
(x) Contracts identified in clause (vi) above that (A) limit the freedom of the VH Companies to compete in any line of business or with any Person or in any area or that would so limit, in any material respect, the freedom of Parent or its Affiliates or the VH Companies after Closing, (B) contain exclusivity obligations or restrictions binding on the VH Companies or that would be binding on Parent or any of its Affiliates after the Closing, (C) contain restrictions on the ability of the VH Companies to solicit holders or owners of insurance Contracts for the purchase, renewal, lapse or surrender of such insurance Contracts, (D) provide for a “most favored nation” pricing status for any party thereto or (E) contain provisions for the sharing of any revenue, profits, cost-savings, losses or Liabilities with any other Person (excluding any rights or obligations with respect to indemnification);
(xi) Contracts with any Person acting on behalf of an insured or another broker or Producer to obtain an insurance policy in respect of, and material to, the business of any VH Company, in each case, in the possession of and immediately accessible to the VH Companies;
(xii) Contracts between any VH Company, on the one hand, and (A) any director or officer of a VH Company; (B) any stockholder holding more than 9.9% of the outstanding Common Stock of the Company; or (C) any Affiliate of any such director, officer or stockholder of the Company (other than the VH Companies), on the other hand, other than any Contracts that will not survive the Closing and for which the Company will have no Liability following Closing;
(xiii) Contracts relating to material Intellectual Property, excluding off- the-shelf, non-exclusive software licenses with annual fees less than $1,000,000;
(xiv) Contracts providing for the settlement of any Action that result in the payment of $3,500,000 in excess of the amount reserved therefor on the balance sheet of the VH Companies or covered by insurance, in any case excluding the settlement of claims under Insurance Contracts in the Ordinary Course of Business within policy limits;
(xv) Contracts with any applicable Governmental Body (including Domiciliary Departments of Insurance);
(xvi) Contracts under which any VH Company has committed to make any investment (in the form of a loan, capital contribution or otherwise) in any other Person (other than any other VH Company), other than an investment in an amount less than $2,500,000;
(xvii) capital maintenance or similar Contracts pursuant to which (A) any Person (other than a VH Company) has agreed to contribute capital or surplus to any VH Company; or (B) any VH Company has agreed to contribute capital or surplus to any Person (other than to any other VH Company);
(xviii) any guarantees (including the IPA Guarantees), keepwells, letters of credit, indemnity or contribution agreements, support agreements, insurance surety bonds or other similar agreements (excluding Insurance Contracts) made in respect of the obligations of, or for the benefit of any obligee of, any VH Company by any Securityholder or any Affiliate thereof (other than the VH Companies), and any other Contract (including any “take-or-pay” or keepwell agreement) under which (A) any Person (other than a VH Company) has directly or indirectly guaranteed any Liabilities or obligations of any VH Company or (B) any VH Company has directly or indirectly guaranteed any Liabilities or obligations of any other Person (other than a VH Company);
(xix) Contracts relating to any interest rate, derivatives or hedging transaction;
(xx) Collective Bargaining Agreements or other similar Contracts with any labor organization, union or association to which a LiveArea Company is a partyassociation;
(viixxi) all currently effective employment employment, consulting, retention, change in control, severance and similar agreements with employees or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result consultants of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged Company receiving more than $200,000 per year in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrancescompensation; and
(xviiixxii) all currently effective agreements any commitment to which enter into any LiveArea Company is a party or by which any Contract of its assets or business is bound that involve amounts exceeding $500,000the type described in the foregoing clauses of this Section 4.10(a).
(b) Except as set forth on Section 3.08(b) of Schedule 4.10(b), each Contract disclosed or required to be disclosed in the Disclosure Schedules: Schedules pursuant to Section 4.10(a) (icollectively, together with the Licenses, the “Material Contracts”) each Material Contract is a legal, valid and binding on obligation of the LiveArea relevant VH Company and, to the Knowledge of the Company, of each other party thereto and thereto, enforceable in accordance with its terms against terms. Neither any such LiveArea VH Company nor, to the Knowledge of the Company, and to Sellers’ Knowledge, each any other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in material violation or default of any term (including any service level standard or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iiiconfidentiality provisions) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; , and (iv) no condition or event has occurred which, exists which with the passage of time or the giving of notice or boththe passage of time, or both would result in constitute a breach material violation or default in any material respect by any LiveArea such VH Company or, to Sellers’ Knowledgethe Knowledge of the Company, by any other party thereto (or permit the termination, modification, cancellation or acceleration of performance of the obligations of any such VH Company or, to the Knowledge of the Company, any other than any LiveArea Company) under any party to the Material Contract. No counterparty , or material changes of or to any Material Contract right or obligation or the loss of any benefit thereunder. The Company has made available to Parent true, correct and complete: (excluding statements of worki) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy copies of each written Material Contract Contract; (including any ii) copies of all amendments, modifications or renewals relating modifications, assignments and extensions related thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service in each case, in writing and material, in effect as of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.date hereof; and
Appears in 1 contract
Sources: Merger Agreement
Material Contracts. (a) Section 3.08(a4.07(a) of the Disclosure Schedules lists each of the following contracts and other agreements Contracts by which any of the LiveArea Purchased Assets are bound or affected or to which Seller is a party or by which it is bound in connection with the Business or the Purchased Assets (such Contracts, together with all leases listed the Ticketing Agreements set forth on Section 2.08 of the Disclosure Schedules, Leases set forth in Section 3.09(f4.10(b) of the Disclosure Schedules, collectivelyall Intellectual Property Agreements set forth in Section 4.11(b) of the Disclosure Schedules, the employment agreements forth on Section 4.20 of the Disclosure Schedules and all Related Party Agreements set forth on Section 4.24 of the Disclosure Schedules, being “Material Contracts”):
(i) each agreement all Contracts for the purchase, or sale, license or lease, of a LiveArea Company involving aggregate consideration materials, supplies, goods, services or equipment providing for either (A) payments by Seller in excess of Thirty Thousand Dollars ($500,000 during FY 2020 and 30,000) in 2016 or any year thereafter or (B) remaining payments by Seller of Fifty Thousand Dollars ($50,000) or more in the current calendar year and all shared customer contractsaggregate;
(ii) all agreements Contracts providing for the sale by Seller of materials, supplies, goods, services or equipment that relate to provides for either (A) the sale payments to Seller in excess of Thirty Thousand Dollars ($30,000) in 2016 or any of the LiveArea Companies’ assets, other than in the ordinary course of business year thereafter or (B) capital expenditures remaining payments to Seller of Fifty Thousand Dollars ($50,000) or development costs or expenses, for consideration in excess of $500,000 more in the aggregate;
(iii) all agreements that relate Contracts relating to the acquisition or disposition of any business, a business or material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or under which Seller has any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Companyremaining obligation, other than a Permitted Encumbrance acquisitions of materials, supplies or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging equipment in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification or dispositions of obsolete equipment in the ordinary course of business consistent with past practice, that (A) has not been consummated or (B) was entered into within the past six (6) years;
(iv) all Contracts (A) relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), (B) relating to a guaranty of any material obligation, or (C) granting any Encumbrances, other than Permitted Encumbrances, over any material asset of Seller;
(v) all Contracts for which Seller has remaining monetary obligations are in excess of Ten Thousand Dollars ($10,000) for capital expenditures;
(vi) all Contracts with any Governmental Authority (“Government Contracts”);
(vii) all Contracts that limit the ability of Seller to compete in any line of business or with any Person or in any geographic area or during any period of time, or which would so limit the freedom of Seller after the Closing Date, except with respect to any obligation or covenant not the primary purpose to use proprietary information of such any third party arising under any confidentiality, non-disclosure or other agreement or contract;
(xviviii) all currently effective franchise agreements involving any and all joint venture, partnership, strategic alliance, shareholders’ agreement, joint development partnership or similar arrangementContracts;
(xviiix) all agreements from Contracts for the prior three (3) years involving any resolution or settlement sale of any actual of the Purchased Assets or threatened litigationfor the grant to any Person of any option, arbitrationright of first refusal or preferential or similar right to purchase any of the Purchased Assets;
(x) all powers of attorney with respect to the Business or any Purchased Asset;
(xi) any settlement agreement in respect of any Action under which Seller has continuing obligations (other than confidentiality and indemnification obligations);
(xii) any Contract with a “most favored nations” or similar provision binding on Seller, claim or any Contract requiring Seller to make any minimum payment obligation of any products or services;
(xiii) all material Contracts under which Seller acquires any goods or services pursuant to any Contract between parent or one of Parent’s Affiliates other dispute which, individually or than Seller and any third party and the parties expressly acknowledge and agree that the materiality qualification in this section shall not be subject to the “materiality scrape” clause found in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any last clause of its properties or assets to any EncumbrancesSection 8.02(a); and
(xviiixiv) all currently effective agreements client Contracts relating to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000Seller’s entertainment division.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable Seller in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue is in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, . None of Seller or, to Sellers’ Seller’s Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under) in any material respect ofrespect, or has provided or received any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect notice of any such Material Contract; and (iv) no event has occurred whichintention to terminate or refuse to renew, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements event or circumstance has occurred that, with notice or lapse of work) has provided written notice to the LiveArea Pre-Reorg Parties time or any LiveArea Company both, would constitute an intention to terminate such Material Contract (x) prior to its stated termination date, in the case event of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability default under any Material Contract arising from or result in a breach termination thereof or would cause or permit the acceleration or other changes of an express any right or implied warranty regarding a product obligation or service the loss of any benefit thereunder and, to Seller’s Knowledge, there is no basis for any of the LiveArea Businessforegoing. To Seller’s Knowledge, there are no material disputes pending or received a claim regarding threatened under any such liability based upon alleged breach of an express or implied warranty regarding a product or service of Contract included in the LiveArea BusinessPurchased Assets.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a3.18(a) of the Disclosure Schedules lists each Letter includes, as of the date of this Agreement, a true, complete and correct list of all of the following contracts and other agreements Contracts to which Sellers, the Companies or any of their respective Subsidiaries is a party or under which any of the LiveArea Business Assets are bound (together with all leases but solely to the extent such Contract relates to the Business), excluding any Classified Contracts and Real Property Leases (the Contracts listed in on Section 3.09(f3.18(a) of the Disclosure SchedulesLetter, collectivelyor that would be required to be listed therein if entered into after the date hereof, the “Material Contracts”):).
(i) each any material joint venture or partnership agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contractswith any unaffiliated third party;
(ii) all agreements that relate to any material Contract with a Material Customer, Material Partner or Material Supplier, in each case other than (A) Classified Contracts, (B) Contracts for open source or free software; and (C) Contracts that are Excluded Contracts;
(iii) any Contract exclusively or primarily relating to the Business whose term exceeds one (1) year and that (A) is not cancelable by any of Sellers, the Companies or their respective Subsidiaries on notice of 120 or fewer days without payment by such Person and (B) involves aggregate annual payments to or expenditures by any of Sellers, the Companies or their respective Subsidiaries in excess of $10,000,000;
(iv) any Contract, other than a Real Property Lease, in respect of Indebtedness of the Business or Indebtedness of the Companies or their Subsidiaries for which the Companies or their Subsidiaries would be liable immediately after the Closing in an amount in excess of $10,000,000, other than any Indebtedness owed by a Transferred Subsidiary or the Companies to any other Transferred Subsidiary or the Companies;
(v) any Contract with respect to any future disposition or granting of a right of first refusal, first negotiation or similar right or restriction with respect to the sale of any of the LiveArea Companies’ assetsCompany Units, other than in the ordinary course Transferred Subsidiary Equity or any material portion of business the Business Assets (or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregaterights thereto);
(iiivi) all agreements that relate to any Contract for the acquisition sale of any businessof the Business Assets (whether by merger, a material amount sale of stock stock, sale of assets or assets otherwise) or for the grant to any Person of any other Person or preferential rights to purchase any real property of the Business Assets (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except , in each case, for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) consideration in excess of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party$50,000,000;
(vii) all currently effective employment any Contract containing a provision that materially restricts the Business from engaging or consulting agreements providing for annual salaries competing in any line of business with any Person or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent geographical area or PFS as a result offering or selling any product or service of the transactions contemplated by this Agreement, and all agreements with each staffing firm Business to any Person or agency engaged in class of Persons that would apply immediately after the provision of temporary workers Closing to a LiveArea Companythe Company Group;
(viii) all existing Benefit Plansany Contract with a Material Customer granting such Material Customer exclusive rights or “most favored nation” or similar rights;
(ix) all currently effective agreements requiring severance payments in excess any Contract granting any of $100,000 in Sellers, the aggregate Companies, or their respective Subsidiaries any licenses to, rights in, or covenant not to Employees▇▇▇ any Intellectual Property of any other Person (A) material to and exclusively relating to the operation of the Business (other than non-exclusive licenses to commercially available off-the-shelf Software granted under “shrink-wrap,” “click-wrap,” or other standard internal use license agreements) or (B) where the loss of which such licenses, rights or covenants not to ▇▇▇ under such Contract would reasonably be expected to cause a Material Adverse Effect;
(x) all agreements involving or relating to an outstanding loan any Contract granting any Person any licenses to, or investment rights in, or covenant not to ▇▇▇ any PersonTransferred IP, other than non-exclusive licenses granted in the ordinary course of business;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset Contract solely related to the Business entered into since September 28, 2020 for the settlement of any LiveArea Company, other than a Permitted Encumbrance Action that has not been satisfied or Encumbrance that will be released at or prior to Closingdischarged in full;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years Contract involving any resolution or settlement of any actual or threatened litigationAction with a value in excess of $1,000,000;
(xiii) any material Contract with any Governmental Authority, arbitration, claim or other dispute which, individually or than Contracts entered in the aggregateordinary course of business and any Government Contract with, involve amounts exceeding or pertaining to work for, a foreign Governmental Authority;
(xiv) any Contract relating to the acquisition by the Business of assets outside the ordinary course of business for an amount in excess of $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances50,000,000; and
(xviiixv) all currently effective agreements to which leases of any LiveArea Company is a party or by personal property constituting Business Assets under which any of its assets Sellers, the Companies or business is bound that involve amounts exceeding the Transferred Subsidiaries are obligated to make payments of more than $500,0002,000,000 in any calendar year.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea CompanyTrue, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true correct and complete copy copies of each written Material Contract (including any amendmentsmaterial amendment, modifications or renewals relating theretosupplement, but excluding statements and modification) in effect as of work) has the date hereof other than Classified Contracts have been made available by or on behalf of the Companies to Buyersthe Purchaser. The LiveArea Business Each Material Contract is (except for those that terminate in accordance with their terms) a legal, valid and binding obligation of Sellers, the Companies or their respective Subsidiaries, as applicable, and, to the Knowledge of Sellers, of each counterparty thereto, and is in full force and effect except for such failures to be valid, binding or in full force and effect as has not incurred had a Material Adverse Effect. None of Sellers, the Companies or their respective Subsidiaries, as applicable, on the one hand nor, to the Knowledge of Sellers, any material liability other party to a Material Contract, on the other hand, is in default under any Material Contract arising from (in each case, with or without notice or lapse of time or both), except for such breaches and defaults as have not had a breach of an express or implied warranty regarding a product or service Material Adverse Effect. None of the LiveArea BusinessSellers, the Companies, or the Companies’ Subsidiaries have received written notice of any termination, default or event that with notice or lapse of time, or both, would constitute a claim regarding default by a Seller or its Affiliates under any such liability based upon alleged breach of an express or implied warranty regarding Material Contract, except as would not have a product or service Material Adverse Effect. The terms and conditions of the LiveArea BusinessClassified Contracts would not have a Material Adverse Effect, and each Classified Contract is in full force and effect except as would not have a Material Adverse Effect.
Appears in 1 contract
Sources: Contribution and Equity Purchase Agreement (McAfee Corp.)
Material Contracts. (aSchedule 6.4(d) Section 3.08(a) hereto sets forth a true, ------------------ correct and complete list, as of the Disclosure Schedules lists date of this Agreement, of each of the following contracts and other agreements to which Seller is a party and which relate primarily to the conduct of the LiveArea Business (together with all leases listed other than contracts and other agreements which are not included in Section 3.09(fthe Assumed Liabilities or in the Assets) of the Disclosure Schedules, (collectively, the “"Material Contracts”"):
(i) each agreement of a LiveArea Company involving aggregate consideration in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts;
(ii) all agreements that relate to (A) contracts and other agreements for the future acquisition or sale of any assets involving $20,000 individually (or in the aggregate, in the case of the LiveArea Companies’ assetsany related series of contracts and other agreements), other than for acquisitions of programming or sales of advertising in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contractpractice;
(xviB) all currently effective contracts and other agreements involving any relating to joint venture, partnership, strategic alliance, shareholders’ agreement, joint development ventures or similar arrangementpartnerships;
(xviiC) all contracts and other agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigationcalling for future aggregate purchase prices, arbitration, claim payments or other dispute which, individually consideration to or from Seller in any one year having a value of more than $20,000 in any one case (or in the aggregate, involve amounts exceeding $250,000 in the case of any related series of contracts and other agreements) other than for acquisitions of programming or which otherwise provide sales of advertising in the ordinary course of business consistent with past practice;
(D) contracts and other agreements containing covenants of Seller prohibiting or materially limiting the right to compete in any line of business, prohibiting or restricting its ability to conduct business with any Person or in any geographical area, or requiring the acquisition of goods or services exclusively from a single supplier or provider;
(E) contracts and other agreements relating to the acquisition by Seller of any operating business, the capital stock of any other Person or, except for any equitable remedy Tangible Property or subject any LiveArea Company programming acquired in the ordinary course of business consistent with past practices, or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its other assets or business is bound that involve amounts exceeding property (real or personal) for a purchase price of more than $500,000.
20,000 individually (b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination dateaggregate, in the case of a Material Contract with a stated term any related series of contracts and other agreements);
(F) contracts and other agreements requiring the payment by or (y) within one year following the Closing Date, in the case to Seller of a Material Contract without royalty, override or similar commission or fee of more than $20,000 in any one year;
(G) all collective bargaining agreements;
(H) contracts and other agreements relating to the creation of liens or the guarantee of the payment of liabilities or performance of obligations of any other Person by Seller;
(I) all network affiliation contracts;
(J) all sales agency or advertising representation contracts;
(K) all employment contracts;
(L) all contracts with independent contractors other than those not requiring expenditures of more than $20,000 in any calendar year and having a stated termterm of not more than one (1) year; and
(M) all contracts and other agreements for the sale of broadcast time on any Station for other than monetary consideration having a value of more than $20,000, including the parties thereto, the financial value of the time required to be provided from and after the date indicated on Schedule 6.4(d) and the estimated financial value of the goods or services to be received by Seller from and after such date. A true True, correct and complete copy copies of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service all of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessMaterial Contracts have been delivered by Seller to Buyer.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a3.17(a) of the Guarantors Disclosure Schedules lists Schedule sets forth a true and complete list of, and Guarantors have made available to Purchaser true and complete copies of each of the following contracts and other agreements type of Contracts to which the Company or Company Subsidiaries is a party (each a "Material Contract") except for those of the LiveArea Business (together with all leases Contracts which are related to IP matters listed in Section 3.09(f) 3.20 of the Guarantors Disclosure Schedules, collectively, the “Material Contracts”):Schedule and except for intercompany contracts:
(i) each agreement Material contracts relating to the ownership, development or use of a LiveArea the software or know-how used by the Company involving aggregate consideration in excess or any of $500,000 during FY 2020 and the current calendar year and all shared customer contractsCompany Subsidiaries, except as regards standard software available for on standard terms (such as compilators, maintenance software; office; etc...);
(ii) all agreements that relate Contracts relating to (A) research and development projects in which the sale Company or any of Company Subsidiaries is involved and pursuant to which any of the LiveArea Companies’ assets, other than Company or Company Subsidiaries is obligated to pay amounts in excess of fifty thousand euros (€50,000) per twelve-month period;
(iii) Except for Contracts otherwise disclosed in Section 3.17 of the Disclosure Guarantor Schedule Contracts that were not entered into in the ordinary course of business or (B) capital expenditures pursuant to which the Company or development costs or expenses, for consideration Company Subsidiaries is obligated to pay amounts in excess of two hundred thousand dollars ($500,000 in the aggregate;
(iii200,000) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise)per twelve-month period;
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness Contracts that involve performance of services (including, without limitation, guaranteesexcluding maintenance) or delivery of goods by either the LiveArea CompaniesCompany or any of Company Subsidiaries of an amount or value in excess of two hundred fifty thousand dollars ($250,000) per twelve-month period;
(v) all currently effective agreements between Except for contracts otherwise disclosed in Section 3.17 of the Disclosure Guarantor Schedules, contracts entered into over the last twelve months with (a) significant suppliers and partners, and (b) suppliers and partners that contain (1) exclusivity provisions and/or (2) price discounts in excess of the greater of (i) two hundred fifty thousand dollars ($250,000) or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Companyii) on the other hand25%;
(vi) all currently effective collective bargaining agreements Contracts with resellers or agreements with any labor organization, union or association to which a LiveArea Company is a partyagents;
(vii) all currently effective employment Contracts concerning a partnership or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged joint-venture in the provision of temporary workers to a LiveArea Companycorporate sense;
(viii) all existing Benefit PlansContracts excluding resellers or agents or employees;
(ix) all currently effective Loan agreements, indentures, letters of credit, mortgages, security agreements, pledge agreements, deeds of trust, bonds, notes, guarantees and other agreements requiring severance payments in excess and instruments relating to the borrowing of $100,000 in money or obtaining of or extension of credit pursuant to which the aggregate to EmployeesCompany or any of Company Subsidiaries is an obligor or guarantor, other than intercompany loans solely amongst the Company and the Company Subsidiaries;
(x) all agreements involving Agreements and instruments pursuant to which the Company or relating any of Company Subsidiaries has received or is entitled to an outstanding loan to, receive a subsidy or investment in, any Personother form of financial assistance;
(xi) all currently effective agreements granting Material licenses, licensing arrangements, and other Contracts providing in whole or evidencing an Encumbrance on in part for the use of, or limiting the use of, any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to ClosingIntellectual Property;
(xii) all currently effective Real Property LeasesContracts for the employment of any individual on a full-time, part-time, consulting or other basis providing fixed annual compensation in excess of one hundred thousand euros (€100,000) (or foreign equivalent) or providing severance benefits;
(xiii) all currently effective Collective bargaining agreements with labor unions that provide relate to employees of the Company or Company Subsidiaries;
(xiv) In addition to the Options and Warrants, any profit-sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance or other material plan or arrangement for exclusive dealings between the parties thereto benefit of the Company or which purport Company Subsidiaries' current or former directors, officers or employees;
(xv) Contracts entered into by the Company or any of Company Subsidiaries with any director, manager, seller or Affiliate of any Seller (excluding employment agreements and the Intellectual Property-related contracts described in Section 3.20 of the Guarantors Disclosure Schedule;
(xvi) Contracts that contain a provision or covenant materially prohibiting, impairing, limiting or restricting, or purporting to restrict materially prohibit, impair, limit or limit restrict, the ability of the Company or any LiveArea of Company from Subsidiaries to (Ai) engaging sell or license any products or services of or to any other person in any material respect, (ii) engage in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (Diii) soliciting compete with or engaging obtain products or services from any clientsperson or limit the ability of any person to provide products or services to the Company or any of Company Subsidiaries;
(xivxvii) Contracts (other than customer contracts and office rental) which are material to the Company or Company Subsidiaries and which cannot be terminated, either at all currently effective customer agreements granting or providing any “most favored nation” rights without payment of a fee in excess of €50,000, by the Company or best price protectionthe Company Subsidiaries, as the case may be, with less than six (6) months advance notice;
(xvxviii) all currently effective agreements setting forth Contracts under which either the Company or Company Subsidiaries would be responsible for consequential damages; 16
(xix) Contracts pursuant to which the Company or a Company Subsidiary has obligations or liabilities as guarantor, co-signer, endorser or otherwise in respect of the obligations of any LiveArea Company Person;
(xx) Contracts granting any Person any rights of first refusal, rights of first offer, preemptive rights, or similar rights;
(xxi) Contracts under which the consummation of the Transactions would constitute a breach or a default or an event of acceleration or would give the other contracting party the right to indemnify any third partyterminate, other than customeraccelerate, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of renegotiate or amend such contract;
(xvixxii) all currently effective Settlement agreements, consent orders and similar agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from under which the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; andCompany Subsidiaries has ongoing obligations;
(xviiixxiii) all Powers of attorney currently effective agreements to which any LiveArea and outstanding within the Company is a party or by which and any of its assets Company Subsidiaries; Neither the Company nor any of Company Subsidiaries has entered into any other agreement, oral or business is bound that involve amounts exceeding $500,000written, the purpose or the effect of which would be identical or similar to those listed above and which would not have been disclosed in Section 3.17(a) of the Guarantors Disclosure Schedule.
(b) Except as set forth on in Section 3.08(b) 3.17 of the Guarantors Disclosure Schedules: (i) Schedule, each Material Contract is valid (i) valid, binding, enforceable and binding is in full force and effect and will continue to be valid, binding, enforceable and in full force and effect on the LiveArea Company party thereto and enforceable in accordance with its identical terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated herebyTransactions in accordance with their terms and for the duration specified therein, shall continue in full force and effect; (ii) no Live Area has been entered into in writing, (iii) does not contain a change of control provision, and (iv) neither Guarantors nor the Company have any reason to believe that the other party will terminate the Material Contract because of the Transactions.
(c) In addition, each Material Contract containing service level agreements, (i) under which the Company or Company Subsidiaries purchase services contains all required, sufficient and necessary provisions to ensure the continued conduct of, and for the purposes of, the Companies or Company Subsidiaries' businesses; or (ii) pursuant to which the Company or Company Subsidiaries provide services to third parties, do not contain provisions imposing on the Company or Company Subsidiaries any obligation or liability exceeding generally accepted industry standards.
(d) Neither the Company nor any of Company Subsidiaries, or any other party thereto, is in breach of or default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect ofunder, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred and to the Knowledge of Guarantors, no condition exists which, with the passage lapse of time or time, the giving of notice notice, or both, or the occurrence of any further event or condition, would result in become a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) of a provision under any Material Contract. No counterparty to Neither the Company nor any Material Contract (excluding statements of work) Company Subsidiaries has provided written notice to the LiveArea Pre-Reorg Parties released or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred waived any material liability right or benefit under any Material Contract arising from a breach of an express and any material amendments or implied warranty regarding a product or service modifications have been disclosed.
(e) Except for the Material Contracts set forth in Section 3.17(e) of the LiveArea BusinessGuarantors Disclosure Schedule, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service none of the LiveArea BusinessMaterial Contracts contains any "most-favored nation" or similar provision.
(f) The agreement, dated December 1, 2004, between the Company and Aelios Finance has been terminated without any penalty, termination payment or premium of any kind.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a4.15(a) of the Disclosure Schedules lists each Schedule sets forth a list of the following contracts and other agreements Contracts to which the Company is a party as of the LiveArea Business date hereof, excluding any Benefit Plans and Employment Agreements (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):
(i) each agreement of a LiveArea Company involving agreements where: (A) the performance remaining thereunder involves aggregate consideration to or by the Company in excess of $500,000 during FY 2020 75,000 per annum, other than “shrink wrap” or “click through” license agreements or other software license agreements entered into in the ordinary course of business, and (B) such agreement is not cancelable, without material penalty, by the current calendar year and all shared customer contractsCompany on ninety (90) days’ or less notice, provided, however, that this Section 4.15(a)(i) shall list only the purchase orders in excess of $75,000 per annum that are outstanding as of December 31, 2015;
(ii) all agreements that relate to (A) which restrict or limit in any material respect the sale of any ability of the LiveArea Companies’ assetsCompany to compete in any line of business, other than license agreements entered into in the ordinary course of business;
(iii) agreements which relate to Funded Indebtedness (excluding, for the avoidance of doubt, Contracts evidencing liabilities with respect to deposits and accounts, trade payables, letters of credit or capital leases made in the ordinary course of business and not delinquent);
(iv) mortgages, pledges or security agreements or similar arrangements constituting a Lien upon the assets or properties of the Company, in each case granted in connection with the incurrence of Funded Indebtedness;
(v) agreements for the sale or purchase of personal property having a value individually, with respect to all sales or purchases thereunder, in excess of Fifty Thousand Dollars ($50,000), other than agreements entered into in the ordinary course of business;
(vi) agreements for the sale or purchase of fixed assets or real estate having a value individually, with respect to all sales or purchases thereunder, in excess of One Hundred Thousand Dollars ($100,000), other than agreements entered into in the ordinary course of business or (B) capital expenditures in which the applicable acquisition or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a disposition has been consummated and there are not material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;obligations ongoing; and
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of All Material Contracts are in full force and effect against the Disclosure Schedules: (i) each Material Contract is valid and binding on Company and, to the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ ’s Knowledge, each other party thereto, subject to in each case in accordance with the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in express terms thereof. There does not exist under any Material Contract any material respect ofviolation, orbreach or event of default, to Sellers’ Knowledgeor alleged material violation, alleged to be in breach in any material respect ofor event of default, any Material Contract; (iii) to Sellers’ Knowledgeor event or condition that, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default after notice or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage lapse of time or the giving of notice or both, would result in constitute a material violation, breach or event of default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea thereunder on the part of the Company) under any Material Contract. No counterparty to any Complete and correct copies of each Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has have been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea BusinessBuyer.
Appears in 1 contract
Sources: Stock Purchase Agreement (DSW Inc.)
Material Contracts. (a) Except as set forth in Section 3.08(a2.17(a)(i) through Section 2.17(a)(xix) of the Disclosure Schedules lists each Schedule, the Company is not a party to or otherwise bound by any of the following contracts and other agreements of Contracts (with such Contracts to which the LiveArea Business (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, Company is a party to or otherwise bound by being referred to herein as the “Material Contracts”):
(i) each agreement any Contract (or group of a LiveArea related Contracts) that involved expenditures or guaranteed receipts by the Company involving aggregate consideration of more than $10,000 the last fiscal year or is expected to involve expenditures or guaranteed receipts by the Company of more than $10,000 in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contractsfiscal year;
(ii) all agreements that relate to (A) the sale of any of the LiveArea Companies’ assets, other than in the ordinary course of business Contract with any Top Customer or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregateTop Supplier;
(iii) all agreements that relate any Contract relating to the acquisition or disposition by the Company of any businessoperating business or material assets, a material amount of stock including any such Contract under which the Company has any executory covenants or assets of any indemnification or other Person obligations or any real property rights (whether by merger, sale of stock, sale of assets including put or otherwisecall options);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line Contract relating to indebtedness or providing for the creation of businessor granting any Lien upon any of the material properties or assets of the Company, (B) competing with any Person, Contract (C1) doing business in relating to any geographical area loan or advance to any Person which is outstanding as of the date hereof (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into immaterial advances to employees in the ordinary course of business consistent with past practice where practice) or (2) obligating or committing the Company to make any such indemnification obligations are not loans or advances, or (C) any Contract whereby the primary purpose of such contractCompany holds cash in escrow;
(xviv) all currently effective agreements involving any Contract (A) relating to the issuance or sale of any Equity Interests of the Company by the Company to any Person; (B) relating to the acquisition, issuance, voting, registration, sale, or transfer of any Equity Interests of the Company; (C) providing any Person with any preemptive right, right of participation, right of maintenance or similar right with respect to any Equity Interests of the Company; or (D) providing the Company with any right of first refusal with respect to, or right to repurchase, redeem, put or call, any Equity Interests of the Company;
(vi) (A) any stockholder, common law or statutory partnership, joint venture, partnershiplimited liability company, strategic alliance, shareholders’ agreement, joint development operating or similar arrangemententity governance Contract; (B) any Contract creating or purporting to create any partnership or joint venture or any sharing of profits or losses by the Company with any third party; or (C) any Contract that provides for “earn-outs” or other contingent payments by or to the Company;
(xviivii) all agreements any Contract with any Governmental Authority;
(viii) any Contract (A) containing covenants restricting or purporting to restrict competition which, in either case, have, would have or purport to have the effect of prohibiting the Company or any of its Affiliates (including the Buyer and its Affiliates after the Closing) from engaging in any business or activity in any product, product application, market or geographic area or other jurisdiction; (B) containing covenants prohibiting or limiting the prior three right of the Company to make, sell or distribute any products or services; (3C) years in which the Company has granted “exclusivity” or that requires the Company to deal exclusively with, any customer, supplier, distributor, contractor or other Person; (D) that includes minimum purchase conditions or other similar requirements; (E) containing a “most-favored-nation,” best pricing or other similar term or provision by which another party to such Contract or any other Person is, or could become, entitled to any benefit, right or privilege which, under the terms of such Contract, must be at least as favorable to such party as those offered to another Person; or (F) containing any “non-solicitation” or “no-hire” provisions or covenants running in favor of another Person;
(ix) any Contract that contains a put, call, right of first refusal or right of first negotiation, right of first offer, redemption, repurchase or similar right pursuant to which the Company would be required to, or have the option or right to, purchase or sell, as applicable, any Equity Interests, businesses, lines of business, divisions, joint ventures, partnerships or other assets of any Person;
(x) any Contract involving a sales agent, representative, distributor, reseller, middleman, marketer, broker, franchisor or similar Person who is entitled to receive commissions, fees or markups related to the provision or resale of good or services of the Company;
(xi) any Contract involving any resolution or settlement of any actual or threatened litigationAction involving the Company;
(xii) any Contract for capital expenditures or the acquisition of materials, arbitrationsupplies or fixed assets, claim other than purchase orders for inventories or supplies in the ordinary course of business consistent with past practice;
(xiii) any Contract under which the Company is a lessee of, or holds or operates, any machinery, equipment, vehicle or other dispute whichtangible personal property owned by a third party;
(xiv) any Contract pursuant to which the Company is granted a lease in, individually sublease in or the right to use or occupy any real property, including each of the Leases;
(xv) any Contract that relates to employment, compensation, severance or consulting between the Company and any officer, employee, Contingent Worker or agent of the Company who is entitled to an annual compensation in excess of $10,000 per fiscal year or whose employment, service or engagement with the Company is not terminable at-will without penalty;
(xvi) any Contract with respect to any Intellectual Property to which the Company is a licensee or licensor (other than Contracts relating to unmodified, commercially available off-the-shelf software, or licenses granted to customers in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for ordinary course of business);
(xvii) any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; andContract that is a Related Party Contract;
(xviii) all currently effective agreements any Contract guaranteeing any material liability or obligation of a third Person (other than commercial indemnities, warranties or other guarantees offered in the ordinary course of business); or
(xix) any Contract not listed in clauses (i) through (xviii) of this Section 2.17(a) that is otherwise material to which any LiveArea Company is a party or by which any the business of its assets or business is bound that involve amounts exceeding $500,000the Company.
(b) Except The Company has furnished or otherwise made available to the Buyer complete and correct copies of each Material Contract, in each case as set forth amended to and in effect on Section 3.08(b) the date of the Disclosure Schedules: (i) each this Agreement. Each Material Contract is valid and valid, binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ Knowledge, each other party thereto, subject as to the Bankruptcy Exception, Company and immediately following the consummation of the transactions contemplated hereby, shall continue is in full force and effect; effect (iiother than due to ordinary expiration of the term thereof) no Live Area and, to the Knowledge of the Company, is valid, binding and enforceable as to the other party or parties thereto. The Company is in default has not received written or, to the Knowledge of the Company, oral notice of the intention or in breach desire of any party to terminate, cancel, not renew or modify any Material Contract in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract respect. The Company has performed all obligations in all material respects performed all obligations required to be performed by it under such each Material Contract and to which it is not in a party. There is no material breach or default under any Material Contract by the Company or, to the Knowledge of the Company, any other party or in breach in any material respect of any such Material Contract; and (iv) no parties thereto. No event has occurred which, that with or without the passage lapse of time or the giving of notice or both, both would result in constitute a material breach or default in under any material respect Material Contract by any LiveArea the Company or, to Sellers’ Knowledgethe Knowledge of the Company, by any other party thereto (other than or parties thereto. The Company has not received any LiveArea written or, to the Knowledge of the Company) under , oral notice regarding any actual violation or breach of, or default under, any Material Contract. There have been no amendments, and there are no amendments contemplated or under discussion with any counterparty, with respect to any Material Contract in connection with COVID-19. No counterparty to any Material Contract (excluding statements of work) has provided written delivered notice to the LiveArea Pre-Reorg Parties Company, and the Company has not received any notice, contact or communication from any LiveArea Company such counterparty, requesting an intention amendment to terminate such Material Contract (x) prior or regarding such party’s inability to its stated termination date, in the case perform any portion of a such Material Contract with as a stated term result of COVID-19, force majeure or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyersotherwise. The LiveArea Business Company has not incurred delivered notice to or contacted any material liability under counterparty to any Material Contract arising from a breach of requesting an express amendment to such Material Contract or implied warranty regarding a product or service the inability of the LiveArea BusinessCompany to perform any portion of such Material Contract as a result of COVID-19, force majeure or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Businessotherwise.
Appears in 1 contract
Material Contracts. (a) Section 3.08(a) Schedule 3.10 of the Seller Disclosure Schedules lists each Letter sets forth as of the date hereof a list of the following contracts and other agreements of Contracts that relate primarily to the LiveArea Business to which an Asset Selling Entity or a Conveyed Company is a party (together with all leases listed in Section 3.09(f) of the Disclosure Schedules, collectively, the “Material Contracts”):), copies of which Seller has made available to Purchaser prior to the Closing:
(i) each agreement of a LiveArea Company involving aggregate consideration Real Property Lease or Equipment Lease which entails payments in excess of $500,000 during FY 2020 and 50,000 per annum or $250,000 in the current calendar year and all shared customer contractsaggregate;
(ii) all each Contract for goods and/or services between Seller and/or any of its Affiliates (other than the Conveyed Companies) or any of the officers or directors of Seller and/or any of its Affiliates (other than the Conveyed Companies), on the one hand, and any Asset Selling Entity and/or a Conveyed Company, on the other hand, other than the agreements terminated in accordance with Section 5.18;
(iii) each mortgage, indenture, security agreement, pledge, note, loan agreement or guarantee or other agreement relating to the borrowing of money (excluding items set forth in Schedule 3.13(a) of the Seller Disclosure Letter) in respect of Indebtedness in excess of $250,000;
(iv) each outstanding Contract with customers of the Business that relate resulted in payment to the applicable Asset Selling Entity or Conveyed Company, respectively, in excess of $250,000 in the Seller’s fiscal year ending on September 28, 2012;
(v) each Contract with vendors of the Business that resulted in payment by the applicable Asset Selling Entity or Conveyed Company, respectively, in excess of $250,000 in the Seller’s fiscal year ending on September 28, 2012;
(vi) each Contract limiting the freedom of (A) the sale any Asset Selling Entity to compete with any Person in connection with such entity’s conduct of any material aspect of the LiveArea Companies’ assetsBusiness or (B) a Conveyed Company to compete with any Person in connection with such entity’s conduct of any material aspect of the Business, other than excluding confidentiality agreements entered into in the ordinary course of business;
(vii) each Intellectual Property License pursuant to which a Conveyed Company or Asset Selling Entity uses Intellectual Property owned by a third party or which the Conveyed Company or Asset Selling Entity grants a right to use Intellectual Property owned by such entity, except for any non-exclusive license entered into in the ordinary course of business and commercially available off-the-shelf computer software licensed pursuant to shrink-wrap or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements click-wrap licenses that relate is not material to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to Business under which a LiveArea Conveyed Company or an Asset Selling Entity is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Companylicensee;
(viii) all existing Benefit Plans;other than as set forth in clause (ix), any Contract that involves the grant to any Person of any preferential rights to purchase any Purchased Asset, any equity or other interest in a Conveyed Company, or any asset of a Conveyed Company; and
(ix) all currently effective agreements requiring severance payments each material Contract regarding the formation or participation in excess of $100,000 in the aggregate to Employees;a partnership, limited liability company or joint venture with any other Person.
(xb) all agreements involving Each Contract set forth on Schedule 3.10 of the Seller Disclosure Letter is in full force and effect and there exists no breach, default or relating event of default by the applicable Asset Selling Entity or the Conveyed Company or, to an outstanding loan to, or investment inthe Knowledge of Seller, any Person;
(xi) all currently effective agreements granting other party to any such Contract, with respect to any material term or evidencing an Encumbrance on any property or asset provision of any LiveArea Companysuch Contract, other than a Permitted Encumbrance or Encumbrance that will in each case which would reasonably be released at or prior expected to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute whichhave, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any a Material Adverse Effect. To the Knowledge of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding $500,000.
(b) Except as set forth on Section 3.08(b) of the Disclosure Schedules: (i) Seller, each Material Contract is valid and binding on enforceable as to the LiveArea Conveyed Company or applicable Asset Selling Entity party thereto and enforceable in accordance with its terms against such LiveArea Companysubject 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. From October 1, 2011 to Sellers’ Knowledgethe date hereof, each other (i) no party to any of the Material Contracts has exercised any termination rights with respect thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in default or in breach in party has given written notice of any material significant dispute with respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; , and (iii) no party has provided written notification to Sellers’ Knowledgethe Seller, each other party to each Material Contract has performed all obligations in all material respects required to be performed by the Conveyed Company or any Asset Selling Entity that it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company shall stop or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under generally applicable price increases, materially alter the pricing or terms of any Material Contract. No counterparty to any Material Contract (excluding statements of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Bel Fuse Inc /Nj)
Material Contracts. (a) Except as set forth in Section 3.08(a3.13(a) of the Disclosure Schedules lists each Schedule, as of the following contracts and other agreements date hereof, none of the LiveArea Business (together with all leases listed in Section 3.09(f) Companies or any of the Disclosure Schedules, collectively, the “Material Contracts”):
their Subsidiaries is a party to or bound by any: (i) each agreement Contract that would be required to be filed by Honeywell as a material contract pursuant to Item 601(b)(10) of a LiveArea Company involving aggregate consideration in excess Regulation S-K of $500,000 during FY 2020 and the current calendar year and all shared customer contracts;
SEC (other than Contracts relating to compensation of executive officers); (ii) all agreements that relate to (A) the sale Contract containing covenants of any of the LiveArea Companies’ assets, other than in the ordinary course of business or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregate;
(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person Company or any real property (whether by merger, sale Subsidiary of stock, sale of assets or otherwise);
(iv) except for agreements relating a Company not to trade receivables, all agreements relating to Indebtedness (including, without limitation, guarantees) of the LiveArea Companies;
(v) all currently effective agreements between or among a LiveArea Company on the one hand and Parent or any Affiliate of Parent (other than a LiveArea Company) on the other hand;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging compete in any line of business, (B) competing with any Person, (C) doing business industry or geographical area in any geographical area material respect; (iii) Contract which by its terms expressly creates a partnership or (D) soliciting joint venture between any Company or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations Subsidiary of any LiveArea Company to indemnify and any third party, other Person; (iv) Contract for the sale of any of its assets after the date hereof (other than customer, vendor, licensing and inventory or other agreements entered into business assets in the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
practice); (xviv) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ collective bargaining agreement, joint development employee association agreement or other agreement with any labor union, employee representative group, works council or similar arrangement;
collection of employees; (xviivi) all agreements from Contract between the prior three Companies and their Subsidiaries, on the one hand, and any Affiliate of either Seller (3) years involving any resolution or settlement of any actual or threatened litigationother than the Companies and their Subsidiaries), arbitrationon the other hand, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company is a party or by which any of its assets or business is bound that involve amounts exceeding of more than $500,000250,000; (vii) Contract under which the Companies and their Subsidiaries have made payments in excess of $1,500,000 in the last fiscal year or anticipate making payments in excess of $1,500,000 in the current fiscal year (other than purchase orders or invoices entered into in the ordinary course of business consistent with past practice); (viii) Contract under which the Companies and their Subsidiaries received payments in excess of $2,500,000 in the last fiscal year or anticipate receiving payments in excess of $2,500,000 in the current fiscal year (other than sales orders or invoices entered into in the ordinary course of business consistent with past practice); (ix) Contract involving the assignment or license of any of the material Intellectual Property (other than commercially available off-the-shelf software purchased or licensed for less than $50,000); (x) Contract involving the acquisition or disposition of any Person or substantially all of the assets of any Person entered into within the three-year period prior to the date of this Agreement; or (xi) Contract involving any Key Customers or Key Suppliers. Each such contract described in clauses (i)-(xi) is referred to herein as a “Material Contract”.
(b) Except as set forth on in Section 3.08(b3.13(b) of the Disclosure Schedules: Schedule, (i) each Material Contract none of the Companies or any of their Subsidiaries is valid and binding on (and, to the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Companyknowledge of Honeywell, and to Sellers’ Knowledge, each no other party theretois) in breach of or material default under any Material Contract, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue in full force and effect; (ii) no Live Area Company is in none of the Companies or their Subsidiaries has received any written notice or claim of default under any Material Contract or in breach in any material respect ofwritten notice of an intention to terminate, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, not renew or challenge the validity or enforceability of any Material Contract; , (iii) to Sellers’ Knowledgethe knowledge of Honeywell, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred whichthat, with the passage or without notice or lapse of time or the giving of notice or both, would result in a breach or default in any material respect by any LiveArea Company or, to Sellers’ Knowledge, by any party thereto (other than any LiveArea Company) under any Material Contract. No counterparty , (iv) each of the Material Contracts is in full force and effect, and is the valid, binding and enforceable obligation of the Companies and their Subsidiaries, and to the knowledge of Honeywell, of the other parties thereto, and (v) the Companies and their Subsidiaries have performed all respective obligations required to be performed by them to date under the Material Contracts and are not (with or without the lapse of time or the giving of notice, or both) in breach thereunder, except for breaches or defaults which individually or in the aggregate are not reasonably likely to give rise to Losses in excess of $50,000 with respect to any Material Contract (excluding statements of work) particular Contract. Honeywell has provided written notice Made Available to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A Purchaser true and complete copy copies of each written Material Contract (Contract, including any amendments, modifications or renewals relating all material amendments thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Business.
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Material Contracts. (a) Section 3.08(a) 4.22 of the Disclosure Schedules lists each Schedule contains a true and correct list of all material contracts, agreements or other understandings or arrangements, written or oral, or commitments therefor, relating to Capricorn, the following contracts and other agreements Business or the assets or liabilities of Capricorn (collectively, the LiveArea Business (together with all leases listed "Contracts"). Except as set forth in Section 3.09(f) 4.22 of the Disclosure SchedulesSchedule, collectivelyCapricorn is not a party to, the “Material Contracts”):or otherwise bound by, any material written or oral, formal or informal:
(i) each agreement purchase orders and other contracts for the sale of a LiveArea Company involving aggregate consideration goods or services in excess of $500,000 during FY 2020 and the current calendar year and all shared customer contracts25,000;
(ii) all contracts, agreements that relate to (A) or commitments for the purchase of materials or services which are not required in the current operation of the Business in the ordinary course, or any agreements or commitments for the sale of any of the LiveArea Companies’ assets, other than in the ordinary course of business goods or (B) capital expenditures or development costs or expenses, for consideration in excess of $500,000 in the aggregateservices which are inadequate to recover current costs;
(iii) all agreements that relate to contracts involving the acquisition expenditure of more than $25,000 in any businessinstance for the purchase of material, a material amount of stock supplies, equipment or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise)services;
(iv) except for agreements relating to trade receivables, all agreements relating to Indebtedness contracts involving the expenditure of more than $25,000 which are not cancelable within thirty (including, without limitation, guarantees30) of the LiveArea Companiesdays;
(v) all currently effective agreements between contracts relating to the leasing (as lessor or among a LiveArea Company on lessee) or the one hand and Parent conditional purchase or any Affiliate sale by Capricorn of Parent (other more than a LiveArea Company) on the other hand$25,000 of property, whether real, personal or mixed;
(vi) all currently effective collective bargaining agreements or agreements with any labor organization, union or association contracts to which a LiveArea Company is a party;
(vii) all currently effective employment or consulting agreements providing for annual salaries or payments in excess of $350,000, including target level awards under the Parent’s short term and long term incentive plans but excluding commissions and any amounts payable to Employees by Parent or PFS as a result of the transactions contemplated by this Agreement, and all agreements with each staffing firm or agency engaged in the provision of temporary workers to a LiveArea Company;
(viii) all existing Benefit Plans;
(ix) all currently effective agreements requiring severance payments in excess of $100,000 in the aggregate to Employees;
(x) all agreements involving or relating to an outstanding loan to, or investment in, any Person;
(xi) all currently effective agreements granting or evidencing an Encumbrance on any property or asset of any LiveArea Company, other than a Permitted Encumbrance or Encumbrance that will be released at or prior to Closing;
(xii) all currently effective Real Property Leases;
(xiii) all currently effective agreements that provide for exclusive dealings between the parties thereto or which purport to restrict or limit any LiveArea Company from (A) engaging in any line of business, (B) competing with any Person, (C) doing business in any geographical area or (D) soliciting or engaging any clients;
(xiv) all currently effective customer agreements granting or providing any “most favored nation” rights or best price protection;
(xv) all currently effective agreements setting forth obligations of any LiveArea Company to indemnify any third party, other than customer, vendor, licensing and other agreements entered into the ordinary course of business consistent with past practice where such indemnification obligations are not the primary purpose of such contract;
(xvi) all currently effective agreements involving any joint venture, partnership, strategic alliance, shareholders’ agreement, joint development or similar arrangement;
(xvii) all agreements from the prior three (3) years involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute which, individually or in the aggregate, involve amounts exceeding $250,000 or which otherwise provide for any equitable remedy or subject any LiveArea Company or any of its properties or assets to any Encumbrances; and
(xviii) all currently effective agreements to which any LiveArea Company Capricorn is a party or by which any of its assets or business is are bound that involve amounts exceeding $500,000require consent by any other Person in connection with the transaction contemplated hereby, either to prevent a breach or continue the effectiveness thereof;
(vii) contracts or arrangements with any governmental body, agency or authority;
(viii) indentures, mortgages, promissory notes, loan agreements, capital leases, security agreements or other agreements or commitments for the borrowing of money, or the deferred purchase price of assets, or which create a lien or encumbrance on any assets of Capricorn;
(ix) guarantees of the obligations of third parties or agreements to indemnify third parties (other than indemnification provisions provided in the ordinary course to or for the benefit of customers);
(x) agreements which restrict Capricorn from doing business in any geographic location;
(xi) policies of insurance in force and effect with respect to the Business or assets of Capricorn;
(xii) contracts or agreements with Shareholder or its Affiliates;
(xiii) license agreements (as licensee or licensor) with third parties other than licenses for computer software that is sold to the general public;
(xiv) employment or consulting agreements;
(xv) distributor, dealer, sales, advertising, agency, manufacturer's representative, franchise or similar contracts or any contract relating to the payment of a commission;
(xvi) agreements, arrangements or programs pursuant to which Capricorn has promised or made available to its customers any volume discount, rebate, credit or allowance;
(xvii) collective bargaining or other agreements with labor unions; or
(xviii) any other contract outside the ordinary course of the Business not otherwise described in this Subsection.
(b) True and complete copies of each of the Contracts have been made available to TechTeam by Shareholder. Except as set forth on Section 3.08(b) 4.22 of the Disclosure Schedules: (i) each Material Contract is valid and binding on the LiveArea Company party thereto and enforceable in accordance with its terms against such LiveArea Company, and to Sellers’ KnowledgeSchedule, each other party thereto, subject to the Bankruptcy Exception, and immediately following the consummation of the transactions contemplated hereby, shall continue Contracts is in full force and effect; (ii) effect and there exists no Live Area Company is in default or in breach in any material respect of, or, to Sellers’ Knowledge, alleged to be in breach in any material respect of, any Material Contract; (iii) to Sellers’ Knowledge, each other party to each Material Contract has performed all obligations in all material respects required to be performed by it under such Material Contract and is not in default or in breach in any material respect of any such Material Contract; and (iv) no event has occurred which, with the passage of time or the giving of notice or lapse of time or both, would result in constitute a breach or default in any material respect thereunder by any LiveArea Company Capricorn or, to Sellers’ Knowledgethe best knowledge of the Shareholder, by any other party thereto (other than any LiveArea Company) thereto. Except as set forth in Section 4.22 of the Disclosure Schedule, no written notice of termination or nonrenewal has been given under any Material Contract. No counterparty The dollar amounts set forth in this Section 4.22 with respect to the Contracts shall not be deemed to represent any standard of "materiality" with respect to the Contracts or otherwise for any other purpose and shall have no application to any Material Contract (excluding statements other Section of work) has provided written notice to the LiveArea Pre-Reorg Parties or any LiveArea Company an intention to terminate such Material Contract (x) prior to its stated termination date, in the case of a Material Contract with a stated term or (y) within one year following the Closing Date, in the case of a Material Contract without a stated term. A true and complete copy of each written Material Contract (including any amendments, modifications or renewals relating thereto, but excluding statements of work) has been made available to Buyers. The LiveArea Business has not incurred any material liability under any Material Contract arising from a breach of an express or implied warranty regarding a product or service of the LiveArea Business, or received a claim regarding any such liability based upon alleged breach of an express or implied warranty regarding a product or service of the LiveArea Businessthis Agreement.
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