AGREEMENTS, NO DEFAULTS, ETC. Except as set forth in the Disclosure Letter, the Company is not a party to any:
(a) Contract for the employment of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis;
(b) Contract with any Affiliate of the Company;
(c) Contract relating to the borrowing of money or to the mortgaging, pledging or otherwise placing an Encumbrance on any asset or group of assets of the Company;
(d) Contract relating to any guarantee of any obligation for borrowed money or otherwise;
(e) Contract with respect to the lending or investing of funds;
(f) Contract or indemnification with respect to any form of intangible property, including any Intellectual Property Rights or confidential information;
(g) Contract or group of related Contracts with the same party (excluding purchase orders entered into in the ordinary course of business which are to be completed within three months of entering into such purchase orders) for the purchase or sale of products or services under which the undelivered balance of such products and services has a selling price in excess of $10,000;
(h) Contract that prohibits it from freely engaging in business anywhere in the world;
(i) other Contract (x) that is not terminable by either party without penalty upon not more than 30 days' advance notice and involves aggregate consideration in excess of $20,000 or (y) that involves aggregate consideration in excess of $25,000 (excluding in the case of clauses (x) and (y) above any purchase order entered into in the ordinary course of business which is to be completed within three months of entering into such purchase orders); or
(j) other Contract material to the Subject Business. Except as set forth in the Disclosure Letter, there are no vehicles, boats, aircraft, apartments or other residential or recreational properties or facilities owned or operated by the Company for executive, administrative or sales purposes or any social club memberships owned or paid for by it. Except as set forth in the Disclosure Letter, the Company has in all material respects performed all the obligations required to be performed by it to date and is not in default or alleged to be in default in any material respect under any Contract, and there exists no event, condition or occurrence which, after notice or lapse of time, or both, would constitute such a default by the Company of any of the foregoing. The Company has furnished to Acquisition Sub true and complete copies of al...
AGREEMENTS, NO DEFAULTS, ETC. (a) Schedule 4.13(a) contains a true, correct and complete list and a brief description of all material Contracts to which the Company or any of its Subsidiaries is a party and (x) that were entered into or made outside the ordinary course of business, consistent with past practice, or (y) that were entered into or made in the ordinary course of business, consistent with past practice, and are described in clauses (i) through (xiii) of the next sentence of this Section 4.13. Except as set forth on Schedule 4.13(a), neither the Company nor any of its Subsidiaries is a party to any of the following material Contracts:
(i) distributorship, dealer, sales, advertising, agency, manufacturer's representative, or any other Contract relating to the payment of a commission;
(ii) any Contract relating to the employment of any officer, employee or consultant or any other type of Contract or other understanding or arrangement with any officer, employee or consultant, including any Contract or other understanding or arrangement relating to severance payments;
(iii) any indenture, mortgage, promissory note, loan agreement, pledge agreement, guaranty or conditional sale or other Contract relating to the borrowing of money, a line of credit or a Capital Lease;
(iv) any Contract for charitable contributions in excess of $5,000 individually or $10,000 in the aggregate;
(v) any Contract for capital expenditures in excess of $10,000 individually or $50,000 in the aggregate;
(vi) any Contract for the sale of any assets, properties or rights other than the sale of services or products in the ordinary course of business, consistent with past practice;
(vii) any Contract pursuant to which the Company or any of its Subsidiaries is a lessee of or holds or operates any machinery, equipment, motor vehicles, office furniture, fixtures, products, merchandise or other personal property owned by any other Person in excess of $10,000 individually or $50,000 in the aggregate;
(viii) any Contract relating to the lending or investing of funds;
(ix) any Contract relating to any form of intangible property, including any Intellectual Property Rights;
(x) any Contract that restricts the Company or any of its Subsidiaries from engaging in any aspect of the Business or any other business anywhere in the world;
(xi) any Contract or group of related Contracts with the same Person or group of Affiliated Persons (excluding purchase orders entered into in the ordinary course of business, consistent wit...
AGREEMENTS, NO DEFAULTS, ETC. (a) SCHEDULE 5.12 contains a true and complete list and brief description of all written or oral Contracts to which each Seller is a party and (x) which were entered into or made outside the ordinary course of the business of Leisegang GmbH or, with respect to the Asset Sellers, outside the ordinary course of the Business or (y) which were entered into or made in the ordinary course and are described in clauses (i) through (xx) of this SECTION 5.12 (each, a "Contract" and collectively, the "Contracts"). Except as set forth on SCHEDULE 5.12, neither Leisegang GmbH nor any Asset Seller in respect of the Business is a party to any of the following:
(i) distributorship, dealer, sales, advertising, agency, manufacturer's representative or other Contract relating to the payment of a commission;
(ii) collective bargaining agreement or other Contract with or commitment to any labor union or proposed labor union;
(iii) continuing Contract for the future purchase of products, material, supplies, equipment or services in excess of $30,000 which is not immediately terminable by such Seller without cost, forfeiture or other liability at or at any time after the Closing;
(iv) Contract for future sales in excess of $30,000 which is not immediately terminable by such Seller without cost or other liability at or at any time after the Closing;
(v) Contract or commitment for the employment of any officer, employee or consultant or any other type of Contract or understanding with any officer, employee or consultant, including any agreement or understanding relating to severance payments;
(vi) formal or informal profit sharing, bonus, stock option, pension, retirement, disability, stock purchase, hospitalization, insurance or similar plan or agreement providing benefits to any current or former director, officer, employee or consultant, whether or not subject to the Employee Retirement Income Securities Act of 1974, as amended ("ERISA"), of the Foreign Subsidiaries;
(vii) Contract or commitment for the borrowing of money, for a line of credit or for a leasing transaction of a type required to be capitalized in accordance with Statement of Financial Accounting Standards No. 13 of the Financial Accounting Standards Board;
(viii) Contract or commitment for charitable contributions in excess of $1,000;
(ix) Contract or commitment for capital expenditures in excess of $10,000;
(x) agreement or arrangement for the sale of any assets, properties or rights in excess of $50,000 in the ...
AGREEMENTS, NO DEFAULTS, ETC. (a) The Company has made available (x) to PricewaterhouseCoopers LLP (subject to and in accordance with a Nondisclosure Agreement dated February 24, 2007) true, correct and complete copies of certain commercially sensitive data requested by Purchaser and (y) (except with respect to such commercially sensitive data) true, correct and complete copies of, all contracts, agreements, commitments, arrangements, leases (including with respect to personal property) and other instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their respective properties or assets is bound (in the case of this clause (y), such availability has been either (A) in the Company Reports filed prior to the date hereof, (B) in the electronic data room set up by the Company, or (C) in hard copy, provided that a schedule of such contracts, agreements, commitments, arrangements, leases and other instruments provided in hard copy has been included in the electronic data room set up by the Company), in each case, that:
(i) would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company or K & F Subsidiary on a Current Report on Form 8-K;
(ii) contain covenants that limit the right of the Company or any of its Subsidiaries (or which, following the consummation of the transactions expressly contemplated hereby, could restrict the right of the Surviving Corporation or any of its Subsidiaries) to compete in any business or with any person or in any geographic area, or to purchase, sell, supply or distribute any service or product, except any such contract, agreement, commitment, arrangement, lease (including with respect to personal property) and other instrument that may be cancelled without any material penalty or liability to the Company or any of its Subsidiaries upon notice of sixty (60) days or less;
(iii) relates to the formation, creation, operation, management or control of any partnership, limited liability company or joint venture that is material to the business of the Company and its Subsidiaries, taken as a whole;
(iv) represents or relates to any exchange traded, over-the-counter or other swap, cap, floor, collar, futures contract, forward contract, option or any other derivative financial instrument or contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature w...
AGREEMENTS, NO DEFAULTS, ETC. (a) Schedule 5.13(a) contains a true, correct and complete list ---------------- and a brief description of all Contracts to which the Company is a party and (x) that were entered into or made outside the ordinary course of business, consistent with past practice, or (y) that were entered into or made in the ordinary course of business, consistent with past practice, and are described in clauses (i) through (xiii) of the next sentence of this Section 5.13. Except as set forth on Schedule 5.13(a), the Company is not a party to any of the ---------------- following Contracts:
(i) distributorship, dealer, sales, advertising, agency, manufacturer's representative, or any other Contract relating to the payment of a commission;
(ii) any Contract relating to the employment of any officer, employee or consultant or any other type of Contract or other understanding or arrangement with any officer, employee or consultant, including any Contract or other understanding or arrangement relating to severance payments;
(iii) any indenture, mortgage, promissory note, loan agreement, pledge agreement, guaranty or conditional sale or other Contract relating to the borrowing of money, a line of credit or a Capital Lease;
(iv) any Contract for charitable contributions in excess of $5,000 individually or $10,000 in the aggregate;
(v) any Contract for capital expenditures in excess of $10,000 individually or $50,000 in the aggregate;
(vi) any Contract for the sale of any assets, properties or rights other than the sale of services or products in the ordinary course of business, consistent with past practice;
(vii) any Contract pursuant to which the Company is a lessee of or holds or operates any machinery, equipment, motor vehicles, office furniture, fixtures, products, merchandise or other personal property owned by any other Person in excess of $10,000 individually or $50,000 in the aggregate;
(viii) any Contract relating to the lending or investing of funds;
(ix) any Contract relating to any form of intangible property, including any Intellectual Property Rights;
(x) any Contract that restricts the Company from engaging in any aspect of the Business or any other business anywhere in the world;
(xi) any Contract or group of related Contracts with the same Person or group of Affiliated Persons (excluding purchase orders entered into in the ordinary course of business, consistent with past practice, that are to be completed within three months of entering into such purchase orde...
AGREEMENTS, NO DEFAULTS, ETC. (a) Except for Contracts relating to any Employee Benefit Plan listed on Schedule 3.17(a), Schedule 3.12 contains a true and complete list and brief description of all Contracts, to which each Entity is a party and (x) which were entered into or made outside the ordinary course of business, or (y) which were entered into or made in the ordinary course of business and are described in any of clauses (i) through (xiv) of this Section 3.12(a). Except as set forth on Schedule 3.12, no Entity is a party to any of the following: (i) distributorship, dealer, sales, advertising, agency, manufacturer's representative or other Contract relating to the payment of a commission; (
AGREEMENTS, NO DEFAULTS, ETC. Except as set forth on Schedule 4.12 of the Disclosure Letter, neither the Company nor any Subsidiary is a party to any: (
a) Contract for the employment of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis or agreement with any Affiliates;
AGREEMENTS, NO DEFAULTS, ETC. (a) Section 5.11(a) of the Seller Disclosure Schedule contains a true and complete list of all Contracts that both:
(i) specifically and exclusively relate to the U.S. Business to which either Seller (or any of their Affiliates) is currently a party; and
(ii) (A) involve the payment or receipt by Sellers of at least $50,000 in the case of any single Contract during the last fiscal year or pursuant to which Sellers expects to pay or receive at least $50,000 in the case of any single Contract during the current fiscal year; (B) have a binding remaining term of at least one year which cannot be cancelled without penalty on written notice of 60 days or less, provided the aggregate of the payments remaining on all Contracts that have a binding term of less than one year and may be cancelled without penalty on written notice of sixty days or less does not exceed $150,000; (C) contain a covenant limiting the freedom of either Seller to engage in any line of the U.S. Business in any geographic area or to compete with any Person that limits the conduct of either Seller; (D) provide for the employment of any officer, employee or consultant or any other type of Contract or understanding with any officer, employee or consultant, including any agreement or understanding relating to severance payments; (E) provide for indemnification by either Seller with respect to Liabilities relating to any Site of either Seller or any of its respective predecessor Persons or with respect to Liabilities under any Environmental, Health and Safety Law or for the investigation, remediation, or clean up of and Hazardous Materials other than as entered into in the ordinary course of business when entering into a service agreement with a service provider or contractor performing services for the U.S. Business or (F) provide for any joint venture, partnership or similar arrangement by either Seller.
(b) All such Contracts are legal, valid and binding obligations of the Sellers and are in full force and effect. Neither of Sellers have and, to Seller's Knowledge, none of the other parties thereto have violated any provision of, or committed or failed to perform any act which could constitute a material default under the provisions of, any such Contract.
(c) Section 5.11(c) of the Seller Disclosure Schedule contains a true and complete list or description of all Contracts that relate to or are used by the U.S. Business that are not Assigned Contracts (the "Excluded Contracts").
(d) Section 5.1...
AGREEMENTS, NO DEFAULTS, ETC. (a) Schedule 5.13 contains a true and complete list of all written or oral Contracts to which the Company or the NY Subsidiary is a party (incorporating by reference all Contracts disclosed on Schedule 5.4, the leases set forth on Schedule 5.11(a), the insurance policies set forth on Schedule 5.16, and the Employee Plans and Contracts set forth on Schedule 5.21) and (x) which were entered into or made outside the ordinary course of business, or (y) which were entered into or made in the ordinary course of business and are described in clauses (i) through (xiii) of this Section 5.13. Except as set forth on Schedule 5.13, neither the Company nor the NY Subsidiary is a party to any of the following, whether written or oral: (i) distributorship, dealer, sales, advertising, agency, manufacturer's representative or other Contract providing for the payment of a commission; (
AGREEMENTS, NO DEFAULTS, ETC. The Company Disclosure Letter contains a true and complete list and brief description of all material written or oral contracts, agreements and other instruments to which the Company is a party. Except as set forth in the Company Disclosure Letter, the Company is not a party to any:
(a) Contract for the employment of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis or agreement with any Affiliates;
(b) Contract relating to the borrowing of money or to the mortgaging, pledging or otherwise placing an Encumbrance on any asset or group of assets of the Company;
(c) Contract relating to any guarantee of any obligation for borrowed money or otherwise;
(d) Contract with respect to the lending or investing of funds;
(e) Contract or indemnification with respect to any form of intangible property, including any Intellectual Property Rights or confidential information;
(f) Contract or group of related Contracts with the same party for the purchase or sale of products or services under which the undelivered balance of such products and services has a selling price in excess of $15,000;
(g) Contract that prohibits it from freely engaging in business anywhere in the world;
(h) other Contract (x) that is not terminable by either party without penalty upon advance notice of 30 days or less and involves aggregate consideration in excess of $5,000 or (y) that involves aggregate consideration in excess of $25,000; or
(i) other Contract material to the Subject Business. Except as set forth in the Company Disclosure Letter, there are no vehicles, boats, aircraft, apartments or other residential or recreational properties or facilities owned or operated by the Company for executive, administrative or sales purposes or any social club memberships owned or paid for by it. All Contracts listed in the Company Disclosure Letter are in full force and effect, constitute legal, valid and binding obligations of the respective parties thereto, and are enforceable in accordance with their respective terms. Except as set forth in the Company Disclosure Letter, the Company has in all material respects performed all the obligations required to be performed by it to date and is not in default or alleged to be in default under any Contract, and there exists no event, condition or occurrence which, after notice or lapse of time, or both, would constitute such a default by the Company of any of the foregoing. The Company has furnished to Pare...
