Company Contracts. (a) Company has delivered or made available to Parent true, correct and complete copies (and all exhibits and schedules thereto and all amendments, modifications and supplements thereof) of the following Contracts, and all of such Contracts in existence on the date hereof are listed on Part 2.18 of the Company Disclosure Letter, in each case only if such Contract either (x) by its terms requires, or is reasonably likely to require, payment to, or by, Company or the Company Subsidiaries of at least $50,000 over the stated minimum term of the Contract or (y) is material to the business of Company and the Company Subsidiaries (it being understood that any Contract described in clauses (iv), (vii), (ix), (x), (xi), (xiii) or (xvi) are deemed to be material to the business of the Company and the Company Subsidiaries (the “Company Contracts”):
(i) any distributor, supplier, sales, advertising, agency or manufacturer’s representative Contract;
(ii) any license agreement or other written or oral agreement or permission pursuant to which Company has granted to any third party with respect to any IP Assets or Intellectual Property Rights (other than pursuant to Company's standard customer agreements in the ordinary course of business);
(iii) any license, sublicense, agreement or other permission pursuant to which Company uses or otherwise possesses the IP Assets or Intellectual Property Rights of any third party;
(iv) any Contract of Company or any Company Subsidiaries containing any material support or maintenance obligation on the part of Company or any Company Subsidiaries outside of the ordinary course of business;
(v) all Contracts with any customer of the business of the Company and the Company Subsidiaries (provided that for customers that have executed a standard form of agreement, a copy of such form agreement and a list of the customers that have so executed such form agreement shall be sufficient);
(vi) all Contracts of Company or any Company Subsidiaries relating to indebtedness of Company or any Company Subsidiaries
(vii) any agreement pursuant to which any other party is granted exclusive marketing or other exclusive rights of any type or scope with respect to any of products or services of Company or any Company Subsidiaries;
(viii) any continuing Contract for the purchase of materials, supplies, equipment, services or capital expenditures by Company or the Company Subsidiaries involving in the case of any such Contract more than fifty thousand dollar...
Company Contracts. To indemnify the Indemnitee with respect to any Claim related to any dispute or breach arising under any contract or similar obligation between the Company and the Indemnitee.
Company Contracts. (a) Schedule 4.13(a) sets forth a correct and complete list of the following contracts to which the Company is a party, by which the Company or any of its property is subject, or by which the Company is otherwise bound, whether oral or written (collectively, the “Company Contracts”) (other than the Employment Agreements set forth on Schedule 4.15, the Company Benefit Plans set forth on Schedule 4.16 and the insurance policies set forth on Schedule 4.18):
(i) all bonds, debentures, notes, loans, credit or loan agreements or loan commitments, mortgages, indentures, guarantees or other contracts relating to the borrowing of money or binding upon any properties or assets (real, personal or mixed, tangible or intangible) of the Company;
(ii) all leases relating to the Leased Real Property or other leases or licenses involving any properties or assets (whether real, personal or mixed, tangible or intangible);
(iii) all contracts and agreements that (A) limit or restrict the Company or any of its officers, managers, employees, members or other equity holders, agents or representatives (in their capacity as such) from engaging in any business or other activity in any jurisdiction; (B) create or purport to create any exclusive or preferential relationship or arrangement; or (C) otherwise restrict or limit the ability of the Company to operate or expand its Business;
(iv) all contracts and agreements for capital expenditures or the acquisition or construction of fixed assets requiring the payment by the Company of an amount in excess of $10,000, individually or in the aggregate;
(v) all contracts and agreements that provide for an increased payment or benefit, or accelerated vesting, upon the execution hereof, or the Closing, or in connection with the transactions contemplated hereby;
(vi) all contracts and agreements granting any Person a Lien on all or any part of any asset;
(vii) all contracts and agreements for the cleanup, abatement or other actions in connection with any Hazardous Materials, the remediation of any existing environmental condition or relating to the performance of any environmental audit or study;
(viii) all contracts and agreements granting to any Person an option or a first refusal, first-offer or similar preferential right to purchase or acquire any assets;
(ix) all contracts and agreements with any agent, distributor or representative that are not terminable without penalty on thirty (30) days’ or less notice; and
(x) all joint venture or p...
Company Contracts. (a) Section 3.17(a) of the Seller Disclosure Schedule sets forth a true and complete list of each Contract that is in effect as of the date of this Agreement to which the Company or any of its Subsidiaries is a party or by which any of them or their properties or other assets is otherwise bound, that is in any of the categories listed below (collectively, the “Company Contracts”); provided, however, that a Contract referenced by more than one description need only be listed once on the Seller Disclosure Schedule:
(i) any partnership, joint venture or similar Contract with a third party;
(ii) any employment, consulting or similar Contract requiring payment by the Company or any of its Subsidiaries;
(iii) any Contract containing a covenant not to compete or similar provision that impairs or purports to impair the ability of the Company or its Subsidiaries to freely conduct the Business or any other business in any geographic area or during any period of time;
(iv) except for Contracts with customers relating to trade receivables, any Contract evidencing, securing, guaranteeing or otherwise relating to Indebtedness in excess of $100,000;
(v) any Contract providing for any interest rate, currency, commodity or other swap, derivative, hedge, future, forward purchase or sale or other transaction similar in nature or effect;
(vi) any Contract with any Governmental Entity (including municipalities);
(vii) any Contract related to the storage, transportation, handling, loading or processing of the Company’s or any of its Subsidiaries’ coal (including railroad, barge, stock piling and loading agreements) providing for either (A) annual payments by the Company or any of its Subsidiaries in excess of $50,000 or (B) aggregate payments by the Company or any of its Subsidiaries in excess of $100,000;
(viii) any (A) coal supply agreement or coal product sales agreement providing for sales in excess of $250,000 in the aggregate or a term in excess of three years or (B) coal purchase agreement providing for purchases in excess of $250,000 in the aggregate or a term in excess of three years;
(ix) any Contract relating to the provision of contract mining by or to the Company or any of its Subsidiaries, including any Contract relating to any loans or other advances or extensions of credit to any Person providing contract mining services or the loaning, leasing, transfer or other disposition of equipment to any such Person;
(x) any Contract relating to the creation or maintenanc...
Company Contracts. (a) Except as set forth in Part 2.16 of the Company Disclosure Schedule, neither Company nor any of its Subsidiaries is a party to or is bound by:
(i) any management, employment, severance, retention, transaction bonus, change in control, consulting, relocation, repatriation or expatriation agreement or other similar Contract between: (i) any of the Acquired Companies or any of their ERISA Affiliates; and (ii) any active, retired or former employees, directors or consultants of any Acquired Company or any of their ERISA Affiliates, other than any such Contract that is terminable “at will” (or following a notice period imposed by applicable Legal Requirements) without any obligation on the part of any Acquired Company or any of their ERISA Affiliates to make any severance, termination, change in control or similar payment or to provide any benefit, other than severance payments required to be made by any Acquired Company under applicable foreign Legal Requirements;
(ii) any Contracts identified or required to be identified in Part 2.8(b), Part 2.8(c) or Part 2.13(b) of the Company Disclosure Schedule;
(iii) any Contract with any distributor, reseller or sales representative;
(iv) any Contract with any manufacturer, vendor, or other Person for the supply of materials or performance of services by such third party to Company in relation to the manufacture of the Company’s products or product candidates;
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(vi) any Contract incorporating or relating to any guaranty, any warranty, any sharing of liabilities or any indemnity not entered into in the ordinary course of business, including any indemnification agreements between Company or any of its Subsidiaries and any of its officers or directors;
(vii) any Contract imposing any material restriction on the right or ability of any Acquired Company: (A) to compete with any other Person; (B) to acquire any product or other asset or any services from any other Person; (C) to solicit, hire or retain any Person as a director, an officer or other employee, a consultant or an ind...
Company Contracts. Company shall not, and shall not permit any of its Subsidiaries to, enter into or terminate any Company Contract, or make any amendment to any Company Contract, other than renewals of Contracts without changes in terms that are materially adverse to Company and/or its Subsidiaries.
Company Contracts. (a) Schedule 3.15 sets forth each of the following Contracts, identifying specifically each amendment thereto, to which the Company is a party or by which the Company or any of its properties or assets are bound:
(i) any, employment, severance, consulting, relocation, or similar Contract with any Employee, consultant, contractor or advisor;
(ii) any equity incentive plan under which any Company Security or any Security Right with respect thereto has been or may be granted or issued, and any Contract or plan any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, or the payment or timing of payment will be triggered in whole or in part, by the consummation of the Merger or any of the other Transactions or the value of any of the benefits of which will be calculated on the basis of the Merger or any of the other Transactions;
(iii) any lease of personal property having a value individually in excess of $10,000;
(iv) any Contract whereby the Company has guaranteed or otherwise agreed to cause, insure or become liable for, or pledged any of its assets to secure, the performance or payment of, any obligation or other liability of any Person;
(v) any Contract containing any covenant limiting the freedom of the Company or any of its present or future Affiliates to (x) engage in any line of business or in any geographic territory or to compete with any Person, or which grants to any Person any exclusivity with respect to any geographic territory, any customer, or any product or service or (y) solicit for employment, hire or employ any Person;
(vi) any Contract relating to capital expenditures and involving future payments in excess of $10,000 in any individual case or $25,000 in the aggregate;
(vii) any Contract relating to the acquisition or disposition of assets or any interest in any business enterprise outside the Ordinary Course of Business;
(viii) any joint development agreement, joint venture agreement, collaboration agreement, strategic alliance agreement or similar Contract involving the sharing of profits, losses, costs or liabilities with any other Person;
(ix) any Contract granting the Company the right to market, distribute or resell any technology, products or services of any other Person;
(x) any Contract pursuant to which the Company has advanced or loaned any amount to any current or former stockholder of the Company, any Employee, any consultant or contractor of the Company, other than business exp...
Company Contracts. Set forth on Schedule 4.12 is a list of each of the following Contracts to which the Company or any Subsidiary is a party or by which any of their respective properties or assets are bound (other than Contracts related to Leased Real Property and Employee Plans) as of the date of this Agreement (the “Company Contracts”):
(a) Each partnership or joint venture Contract;
(b) Each Contract limiting the right of the Company or any Subsidiary to engage in or compete with any Person in any business or in any geographical area or to hire or retain any Person;
(c) Each Contract containing a “most favored nations” or similar provision;
(d) Each employment agreement to which the Company or any Subsidiary is a party that (i) has a defined term and is not an “at will” agreement, (ii) requires the Company or any Subsidiary to make a payment to the employee upon its termination or (iii) pursuant to which the Company is currently obligated to make any bonus payment;
(e) Each Contract providing for capital expenditures with an outstanding amount of unpaid obligations and commitments in excess of $250,000;
(f) Each Contract with respect to Company Debt;
(g) Each Contract (i) that (A) is reasonably expected to require the Company or any Subsidiary to make payments equal to more than $250,000 in any fiscal year starting on and including the 2015 fiscal year and (B) is not terminable upon less than thirty (30) days prior written notice by the Company or any Subsidiary, as applicable or (ii) pursuant to which the Company or any Subsidiary is reasonably expected to receive payments equal to more than $250,000 in any fiscal year starting on and including the 2015 fiscal year; provided, however, that in the case of each of clauses (i) and (ii), the Company makes no representation or warranty as to any amounts to be actually paid or received under such Contracts;
(h) Each Company Contract to which any director, officer, or Affiliate of the Company or any Subsidiary is a party or beneficiary and that involve more than $50,000, except for the Company’s LTIP, Options and Employee Plans;
(i) Each Company Contract constituting, incorporating, or relating to any rebate, warranty, indemnity, or similar obligation, except for rebates, warranties, indemnities or similar obligations set forth in Contracts made available by the Company to Buyer;
(j) Each Company Contract which provides for indemnification of any officer, director or employee;
(k) Each Company Contract relating to any currency...
Company Contracts. (a) Except for agreements explicitly contemplated hereby, there are no agreements, understandings or proposed transactions between the Company and any of its officers, directors, affiliates or any affiliate thereof.
(b) There are no agreements, understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees to which the Company is a party or by which it is bound that may involve (i) obligations (contingent or otherwise) of, or payments to the Company in excess of, $10,000, or (ii) the transfer or license of any patent, copyright, trade secret or other proprietary right to or from the Company, or (iii) provisions restricting or affecting the development, manufacture or distribution of the Company’s products or services, or (iv) indemnification by the Company with respect to infringements of proprietary rights.
(c) The Company has not (i) declared or paid any dividends or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or any other liabilities individually in excess of $10,000 or, in the case of indebtedness and/or liabilities individually less than $10,000, in excess of $50,000 in the aggregate, (iii) made any loans or advances to any person, other than ordinary advances for travel expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights.
(d) For the purposes of subsections (b) and (c) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.
(e) The Company is not a party to and is not bound by any contract, agreement or instrument, or subject to any restriction under its Certificate of Incorporation or Bylaws, that would have a material adverse effect on the Company.
(f) The Company has not engaged in any discussion (i) with any representative of any corporation or corporations regarding the consolidation or merger of the Company with or into any such corporation or corporations, (ii) with any corporation, partnership, association or other business entity or any individual regarding the sale, conveyance or disposition of all or substantially all of the assets of the Company or a transaction or series of r...
Company Contracts. (a) Schedule 4.12 sets forth a correct and complete list, as of the date hereof, of all of the following Contracts to which the Company is a party or by which any of its properties or assets are bound or to which WS Holdings or its subsidiaries is a party and which Contract relates primarily to the Business (collectively, the “Company Contracts”):
(i) all Contracts where the performance remaining thereunder involves aggregate consideration to or by the Company, in the aggregate, in excess of $250,000 per annum;
(ii) all Contracts containing (A) a covenant of the Company not to (or otherwise restricting, impeding or limiting the ability of the Company to) (x) compete in any line of business or geographic or marketed service area or (y) solicit for employment or employ any person (B) any exclusivity, most favored nation, non-compete or other similar provision that would bind the conduct of Buyer or its Affiliates’ businesses following the Closing;
(iii) all Contracts granting a power of attorney to any Person or authorizing such Person to take any actions that could materially affect the operations or the financial condition of the Company;
(iv) all agreements or instruments related to the incurrence of any Indebtedness of the Company;
(v) all mortgages, pledges or security agreements or similar arrangements constituting a Lien upon the assets or properties of the Company or the Units;
(vi) all Contracts for the acquisition of capital equipment or fixed assets requiring the payment by the Company of an amount in excess of $250,000 individually;
(vii) all Contracts granting to any Person an option or a first refusal, first-offer or similar preferential right to purchase or acquire any assets of the Company other than in the Ordinary Course of Business;
(viii) all Contracts involving the sale or purchase of assets or properties (including capital stock) of any Person other than in the Ordinary Course of Business, or a merger, consolidation, business combination or similar extraordinary transaction, in each case to the extent the Company still has any remaining right, obligation or liability thereunder;
(ix) all Contracts requiring the disposition or purchase of any assets (including capital stock) material to the ongoing operation of the Business, in each case to the extent the Company still has any remaining right, obligation or liability thereunder;
(x) all Intellectual Property Licenses or any other Contracts relating to any Intellectual Property or Technol...
