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 Technology, excluding Off-the-Shelf Licenses; (xi) all joint venture, limited partnership, or similar agreements between the Company, on the one hand, and any other Person, on the other hand (excluding for the avoidance of doubt, any Franchise Agreements); (xii) all Affiliate Agreements; (xiii) all Contracts providing for or relating to the settlement or compromise of any Legal Proceeding to the extent the Company still has any remaining right, obligation or Liability thereunder; (xiv) all Contracts for employment or engagement of any Business Employee or any officer, employee or independent contractor of the Company on a full-time, part-time, consulting or other basis providing annual base compensation in excess of $100,000 (other than ordinary at-will employment agreements terminable upon less than 30 days’ notice and without any liability to the Company) or Contracts providing for payment of severance in excess of $100,000 (other than severance paid in accordance with the Company’s ordinary course severance policies) upon the termination of any Business Employee or any current or former officer, director, employee or independent contractor; (xv) all Contracts or Seller Benefit Plans providing for any change in control, retention or similar payment, benefit or accelerated vesting upon the execution of this Agreement or the Closing or in connection with any of the transactions contemplated by this Agreement (excluding any such payments required by law) to any Business Employee or any current or former officer, director, employee or independent contractor of the Company; (xvi) all collective bargaining agreements, labor agreements, union Contracts or other Contracts with any labor union, works council, or associate representing any Business Employee or any current or former employees of the Company. (xvii) all Contracts with a third party distribution intermediary (including online travel agencies, consortia, travel management companies and global distribution systems) that produced in excess of 5,000 room nights for the Business during the twelve month period ended September 30, 2017; (xviii) all Contracts with any Governmental Body; (xix) all Contracts that provide for the indemnification by the Company of any Person (except as entered into in the Ordinary Course of Business); and (xx) all Contracts to enter into any of the foregoing. (b) Correct and complete copies of all Company Contracts, including all amendments, modifications and supplements thereto, have been made available to Buyer. Each Company Contract is valid, binding and enforceable in accordance with its terms with respect to the Company, and, to the Knowledge of the Company, each other party thereto, in each case, except as such enforceability (i) may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws affecting or relating to enforcement of creditors’ rights generally, and (ii) is subject to general principles of equity (regardless of whether enforceability is considered in a Legal Proceeding at law or in equity). There is no existing default or breach in any material respect (or any event, circumstance or condition that, with the giving of notice or the lapse of time or both, would constitute such a default or breach) by the Company, or, to the Knowledge of the Company, any other party under any Company Contract. No party to any Company Contract has exercised any termination rights with respect thereto, and no party has given written notice of an intent to exercise any termination rights with respect thereto.
Appears in 2 contracts
Samples: Unit Purchase Agreement, Unit Purchase Agreement (Choice Hotels International Inc /De)
Company Contracts. (a) Schedule 4.12 sets forth a correct and complete list, as As of the date hereof, of all except for this Agreement or as set forth in the Company SEC Reports or in Section 5.17 of the following Contracts to which Company Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to or bound by which any contract constituting a "material contract" (as such term is defined in Item 601(b)(10) of its properties or assets are bound or to which WS Holdings or its subsidiaries is a party and which Contract relates primarily to Regulation S-K of the Business (collectively, the “Company Contracts”):SEC) or:
(i) all Contracts where any written or oral contract, agreement, lease, instrument or legally binding contractual commitment ("Contract") with a customer of the performance remaining thereunder involves aggregate Company or its Subsidiaries or with any entity that purchases goods or services from the Company or its Subsidiaries for future consideration to be paid to the Company or its Subsidiaries of $2,000,000 or more in any fiscal year;
(ii) any Contract which would prevent, materially delay or impede the consummation of the transactions contemplated by this Agreement, including the Merger;
(iii) any Contract (including any exclusivity agreement) materially restricting the right of the Company to conduct its business as it is presently conducted or which could require the disposition of any material assets or line of business of the Company;
(iv) any Contract for capital expenditures or the acquisition or construction of fixed assets involving future payments in excess of $500,000;
(v) any Contract for the purchase or lease of goods or services (including, without limitation, equipment, materials, software, hardware, supplies, merchandise, parts or other property, assets or services), requiring aggregate future payments in excess of $500,000, other than inventory purchase orders executed in the ordinary course of business;
(vi) any loan and credit agreement, Contract, note, debenture, bond, indenture, mortgage, security agreement, pledge or other similar agreement pursuant to which any material Indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred;
(vii) except for any Contract entered into in the ordinary course of business consistent with past practice, any Contract relating to guarantees or assumptions of other obligations of any third Person or reimbursements of any maker of a letter of credit which are, in the aggregate, in excess of $250,000 per annum1,000,000;
(iiviii) all Contracts containing (A) a covenant any Contract with any agency or department of the Company not to (United States federal government or otherwise restricting, impeding any state or limiting local government for the ability purchase 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 goods and/or services from the Company or the Units;
(vi) all Contracts for the acquisition of capital equipment or fixed assets requiring the payment by any Subsidiary which would reasonably be expected to result in future payments to the Company of an amount or any Subsidiary in excess of $250,000 individually2,000,000;
(viiix) all Contracts any Contract that constitutes a collective bargaining or other arrangement with any U.S. or Canadian labor union, labor organization, workers' association, works council or other collective group of employees;
(x) any Contract granting to any Person an option or a first refusal, first-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 Capital Stock 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 Technology, excluding Off-the-Shelf LicensesCompany's assets;
(xi) all joint ventureany Contract containing covenants binding upon the Company or any of its Subsidiaries that materially restrict the ability of the Company or any of its Subsidiaries (or that, limited partnershipfollowing the consummation of the Merger could materially restrict the ability of the Surviving Corporation or its affiliates) to compete in any business that is material to the Company and its Subsidiaries, taken as a whole, as of the date of this Agreement, or similar agreements between that materially restricts the Companyability of the Company or any of its Subsidiaries (or that, on following the one handconsummation of the Merger, and would materially restrict the ability of the Surviving Corporation or its affiliates) to compete with any other Person, on the other hand (excluding for the avoidance of doubt, Person or in any Franchise Agreements)geographic area;
(xii) all Affiliate Agreementsany Contract creating or relating to any material partnership, joint venture, or joint development agreement involving future payments or capital commitments in excess of $2,000,000;
(xiii) all Contracts providing for any Contract which (A) prohibits the payment of dividends or relating to distributions in respect of Company Capital Stock or the settlement or compromise capital stock of any Legal Proceeding to wholly owned Subsidiary of the extent Company, (B) prohibits the pledging of Company still has Capital Stock or the capital stock of any remaining rightwholly owned Subsidiary of the Company, obligation or Liability thereunder(C) prohibits the issuance of guarantees by any wholly owned Subsidiary of the Company;
(xiv) all Contracts for any written employment Contract, severance agreement or engagement of other similar binding agreement with any Business Employee or any officer, employee or independent contractor officers of the Company on a full-timeor any member of the Company Board, part-time, consulting or other basis providing annual base compensation in excess of $100,000 (other than ordinary at-will employment agreements terminable upon less than 30 days’ notice and without any liability to Contract that would otherwise obligate or commit the Company) , the Surviving Corporation or Contracts providing for payment of severance in excess of $100,000 (other than severance paid in accordance with the Company’s ordinary course severance policies) upon the termination of their respective Subsidiaries to retain, or not to terminate, any Business Employee or any current or former officer, director, employee or independent contractorofficers;
(xv) all any Contract, other than customer Contracts entered into in the ordinary course of business, containing a covenant or Seller Benefit Plans providing for covenants of the Company or any change of its Subsidiaries to indemnify or hold harmless another Person unless such obligation to indemnify or hold harmless is less than $200,000;
(xvi) any Contract relating to the disposition or acquisition by the Company or any of its Subsidiaries, 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 than in controlthe ordinary course of business, retention including any "earn-out" or other contingent payments or obligations; or
(xvii) any material hedge, collar, option, forward purchasing, swap, derivative or similar paymentContract, benefit understanding or accelerated vesting upon undertaking. All contracts of the type described in this Section 5.17(a) are hereinafter referred as "Company Contracts".
(b) Except as set forth in Section 5.17(b) of the Company Disclosure Letter, all Company Contracts are valid and binding agreements of the Company or a Subsidiary of the Company and are in full force and effect. To the Knowledge of the Company, none of the parties to such Company Contracts is in material breach thereof or material default thereunder or will be as a result of the execution of this Agreement or the Closing or consummation of the transactions contemplated hereby.
(c) Except as set forth in connection with Section 5.17(c) of the Company Disclosure Letter, no benefits under any Company Contract will be materially increased, and no vesting of any material benefits under any Company Contract will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement except where such increase or acceleration would not reasonably be expected to result in material liability to the Company or any of its Subsidiaries or loss of any benefit that is material to the Company and Subsidiaries, taken as a whole. Except as set forth in Section 5.17(c) of the Company Disclosure Letter, there are no Company Contracts that require amounts payable by the Company or its Subsidiaries to any officers of the Company or its Subsidiaries (excluding in their capacity as officers) as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination.
(d) Except where the following matters do not and would not constitute, individually or in the aggregate, a Company Material Adverse Effect, with respect to each Company Contract between the Company or any of its Subsidiaries and any Governmental Entity and each outstanding bid, quotation or proposal by the Company or any Company Subsidiary (each, a "Bid") that if accepted or awarded would lead to a Company Contract between the Company or any of its Subsidiaries and any Governmental Entity (each, a "Company Government Contract") and each Company Contract between the Company or any of its Subsidiaries and any prime contractor or upper-tier subcontractor relating to a Contract between such payments required by lawPerson and any Governmental Entity and each outstanding Bid that if accepted or awarded would lead to a Material Company Contract between the Company or a Subsidiary of the Company and a prime contractor or upper-tier subcontractor relating to a Contract between such Person and any Governmental Entity (each, a "Company Government Subcontract"):
(i) to the Knowledge of the Company (A) each such Company Government Contract or Company Government Subcontract was legally awarded, is binding on the Company or the applicable Subsidiary of the Company thereto, and is in full force and effect and (B) each such Company Government Contract (or, if applicable, each prime Contract under which such Company Government Subcontract was awarded) is not currently the subject of bid or award protest proceedings;
(ii) the Company and each Subsidiary of the Company have complied in all material respects with all terms and conditions of such Company Government Contract or Company Government Subcontract, including all clauses, provisions and requirements incorporated expressly by reference therein;
(iii) the Company and each Subsidiary of the Company have complied in all material respects with all requirements of all Laws, including the Armed Services Procurement Act, the Federal Property and Administrative Services Act, the FAR, the Defense Federal Acquisition Regulation Supplement, the Truth in Negotiations Act, the government contracts cost principles (FAR Part 31), the Cost Accounting Standards, the Buy American Act, the Trade Agreements Act and the Procurement Integrity Act, whether incorporated explicitly, by reference or by operation of law;
(iv) neither the United States government nor any Business Employee prime contractor, subcontractor or other Person has notified the Company or any current or former officer, director, employee or independent contractor Subsidiary of the Company, in writing, that the Company or any Subsidiary of the Company has breached or violated any Law or material certification, representation, clause, provision or requirement pertaining to such Company Government Contract or Company Government Subcontract, and all facts set forth or acknowledged by any disclosures, representations or certifications submitted by or on behalf of the Company or any Subsidiary of the Company in connection with such Company Government Contract or Company Government Subcontract were current, accurate and complete in all material respects on the date of submission;
(xviv) all collective bargaining agreements, labor agreements, union Contracts or other Contracts with neither the Company nor any labor union, works council, or associate representing any Business Employee or any current or former employees Subsidiary of the Company.
(xvii) all Contracts with a third party distribution intermediary (including online travel agenciesCompany has received any notice of termination for convenience, consortianotice of termination for default, travel management companies and global distribution systems) that produced in excess of 5,000 room nights for the Business during the twelve month period ended September 30, 2017cure notice or show cause notice pertaining to such Company Government Contract or Company Government Subcontract;
(xviiivi) all Contracts with any Governmental Body;
(xix) all Contracts that provide for the indemnification by the Company of any Person (except as entered into in the Ordinary Course of Business); and
(xx) all Contracts would not reasonably be expected to enter into any of the foregoing.
(b) Correct and complete copies of all Company Contracts, including all amendments, modifications and supplements thereto, have been made available to Buyer. Each Company Contract is valid, binding and enforceable in accordance with its terms with respect be material to the Company, andother than in the ordinary course of business consistent with past practice, to the Knowledge of the Company, each other party thereto, in each case, except as such enforceability (i) may be limited no cost incurred by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws affecting or relating to enforcement of creditors’ rights generally, and (ii) is subject to general principles of equity (regardless of whether enforceability is considered in a Legal Proceeding at law or in equity). There is no existing default or breach in any material respect (the Company or any event, circumstance Subsidiary of the Company pertaining to a Company Government Contract or condition that, with Company Government Subcontract has been questioned or challenged or is the giving subject of notice any audit or investigation or has been disallowed by any Governmental Entity; and
(vii) no material payment due to the lapse Company or any Subsidiary of time the Company pertaining to such Company Government Contract or both, would constitute such a default Company Government Subcontract has been withheld based upon negative performance-related allegations or breachclaims and no claim has been made in writing to withhold payment based upon negative performance-related allegations or claims.
(e) by the Company, or, to To the Knowledge of the Company, except as set forth on Section 5.17(e) of the Company Disclosure Letter, neither the Company, any other party Subsidiary of the Company, nor any of their respective directors, officers or employees, is or since April 27, 2006 has been under administrative, civil or criminal investigation, indictment or information by any Governmental Entity, or any audit or investigation by the Company Contract. No party or any Subsidiary of the Company, with respect to any alleged act or omission arising under or relating to any Company Government Contract has exercised or Company Government Subcontract.
(f) There exist (i) no outstanding material claims against the Company or any termination rights with respect theretoSubsidiary of the Company, either by any Governmental Entity or by any prime contractor, subcontractor, vendor or other person, arising under or relating to any Company Government Contract or Company Government Subcontract, and (ii) no party outstanding material claims or requests for equitable adjustment or disputes between the Company or any Subsidiary of the Company and the United States government under the Contract Disputes Act, as amended, or any other Law, or between the Company or any Subsidiary of the Company and any prime contractor, subcontractor, vendor or other person arising under or relating to any Company Government Contract or Company Government Subcontract. To the Knowledge of the Company, neither the Company nor any Subsidiary of the Company received any material adverse or negative past performance evaluations or ratings in connection with any Company Government Contract, Company Government Subcontract or other Contract with a Governmental Entity within the past three years. Neither the Company nor any Subsidiary of the Company has given written (i) any pending material claim against any Governmental Entity, or (ii) any pending material claim against any prime contractor, subcontractor, vendor or other person arising under or relating to any Company Government Contract or Company Government Subcontract.
(g) Except as described in Section 5.17(g) of the Company Disclosure Letter, there are no claims or disputes relating to the Company Government Contracts which, if resolved unfavorably to the Company, would, individually or in the aggregate, have a Company Material Adverse Effect.
(h) To the Knowledge of the Company, since April 27, 2006, neither the Company nor any operating segment has been debarred or suspended for 90 days or more in any consecutive twelve-month period, or proposed for debarment or suspension, or received notice of an intent actual or proposed debarment or suspension, from participation in the award of Contracts with the United States government (excluding for this purpose ineligibility to exercise bid on certain contracts due to generally applicable bidding requirements). To the Knowledge of the Company, since April 27, 2006, there exist no facts or circumstances that would reasonably be expected to result in a finding of non-responsibility or ineligibility on the part of the Company or any termination rights operating segment.
(i) Section 5.17(i) of the Company Disclosure Letter sets forth for each instrument listed thereon (i) the aggregate principal amount outstanding as of November 24, 2010 and (ii) a description of any prepayment, redemption or make-whole payments required to be paid in connection with respect theretothe repayment of such Indebtedness. As of the date of this Agreement, there have been no changes to the principal amounts referenced in clause (i), other than scheduled amortization payments and the accrual of interest in accordance with the terms of such instruments.
Appears in 1 contract
Company Contracts. (a) Schedule 4.12 sets forth a correct and complete list, as As of the date hereof, of all except for this Agreement or as set forth in the Company SEC Reports or in Section 5.17 of the following Contracts to which Company Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to or bound by which any contract constituting a “material contract” (as such term is defined in Item 601(b)(10) of its properties or assets are bound or to which WS Holdings or its subsidiaries is a party and which Contract relates primarily to Regulation S-K of the Business (collectively, the “Company Contracts”):SEC) or:
(i) all Contracts where any written or oral contract, agreement, lease, instrument or legally binding contractual commitment (“Contract”) with a customer of the performance remaining thereunder involves aggregate Company or its Subsidiaries or with any entity that purchases goods or services from the Company or its Subsidiaries for future consideration to be paid to the Company or its Subsidiaries of $2,000,000 or more in any fiscal year;
(ii) any Contract which would prevent, materially delay or impede the consummation of the transactions contemplated by this Agreement, including the Merger;
(iii) any Contract (including any exclusivity agreement) materially restricting the right of the Company to conduct its business as it is presently conducted or which could require the disposition of any material assets or line of business of the Company;
(iv) any Contract for capital expenditures or the acquisition or construction of fixed assets involving future payments in excess of $500,000;
(v) any Contract for the purchase or lease of goods or services (including, without limitation, equipment, materials, software, hardware, supplies, merchandise, parts or other property, assets or services), requiring aggregate future payments in excess of $500,000, other than inventory purchase orders executed in the ordinary course of business;
(vi) any loan and credit agreement, Contract, note, debenture, bond, indenture, mortgage, security agreement, pledge or other similar agreement pursuant to which any material Indebtedness of the Company or any of its Subsidiaries is outstanding or may be incurred;
(vii) except for any Contract entered into in the ordinary course of business consistent with past practice, any Contract relating to guarantees or assumptions of other obligations of any third Person or reimbursements of any maker of a letter of credit which are, in the aggregate, in excess of $250,000 per annum1,000,000;
(iiviii) all Contracts containing (A) a covenant any Contract with any agency or department of the Company not to (United States federal government or otherwise restricting, impeding any state or limiting local government for the ability purchase 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 goods and/or services from the Company or the Units;
(vi) all Contracts for the acquisition of capital equipment or fixed assets requiring the payment by any Subsidiary which would reasonably be expected to result in future payments to the Company of an amount or any Subsidiary in excess of $250,000 individually2,000,000;
(viiix) all Contracts any Contract that constitutes a collective bargaining or other arrangement with any U.S. or Canadian labor union, labor organization, workers’ association, works council or other collective group of employees;
(x) any Contract granting to any Person an option or a first refusal, first-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 Capital Stock 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 Technology, excluding Off-the-Shelf LicensesCompany’s assets;
(xi) all joint ventureany Contract containing covenants binding upon the Company or any of its Subsidiaries that materially restrict the ability of the Company or any of its Subsidiaries (or that, limited partnershipfollowing the consummation of the Merger could materially restrict the ability of the Surviving Corporation or its affiliates) to compete in any business that is material to the Company and its Subsidiaries, taken as a whole, as of the date of this Agreement, or similar agreements between that materially restricts the Companyability of the Company or any of its Subsidiaries (or that, on following the one handconsummation of the Merger, and would materially restrict the ability of the Surviving Corporation or its affiliates) to compete with any other Person, on the other hand (excluding for the avoidance of doubt, Person or in any Franchise Agreements)geographic area;
(xii) all Affiliate Agreementsany Contract creating or relating to any material partnership, joint venture, or joint development agreement involving future payments or capital commitments in excess of $2,000,000;
(xiii) all Contracts providing for any Contract which (A) prohibits the payment of dividends or relating to distributions in respect of Company Capital Stock or the settlement or compromise capital stock of any Legal Proceeding to wholly owned Subsidiary of the extent Company, (B) prohibits the pledging of Company still has Capital Stock or the capital stock of any remaining rightwholly owned Subsidiary of the Company, obligation or Liability thereunder(C) prohibits the issuance of guarantees by any wholly owned Subsidiary of the Company;
(xiv) all Contracts for any written employment Contract, severance agreement or engagement of other similar binding agreement with any Business Employee or any officer, employee or independent contractor officers of the Company on a full-timeor any member of the Company Board, part-time, consulting or other basis providing annual base compensation in excess of $100,000 (other than ordinary at-will employment agreements terminable upon less than 30 days’ notice and without any liability to Contract that would otherwise obligate or commit the Company) , the Surviving Corporation or Contracts providing for payment of severance in excess of $100,000 (other than severance paid in accordance with the Company’s ordinary course severance policies) upon the termination of their respective Subsidiaries to retain, or not to terminate, any Business Employee or any current or former officer, director, employee or independent contractorofficers;
(xv) all any Contract, other than customer Contracts entered into in the ordinary course of business, containing a covenant or Seller Benefit Plans providing for covenants of the Company or any change of its Subsidiaries to indemnify or hold harmless another Person unless such obligation to indemnify or hold harmless is less than $200,000;
(xvi) any Contract relating to the disposition or acquisition by the Company or any of its Subsidiaries, 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 than in controlthe ordinary course of business, retention including any “earn-out” or other contingent payments or obligations; or
(xvii) any material hedge, collar, option, forward purchasing, swap, derivative or similar paymentContract, benefit understanding or accelerated vesting upon undertaking. All contracts of the type described in this Section 5.17(a) are hereinafter referred as “Company Contracts”.
(b) Except as set forth in Section 5.17(b) of the Company Disclosure Letter, all Company Contracts are valid and binding agreements of the Company or a Subsidiary of the Company and are in full force and effect. To the Knowledge of the Company, none of the parties to such Company Contracts is in material breach thereof or material default thereunder or will be as a result of the execution of this Agreement or the Closing or consummation of the transactions contemplated hereby.
(c) Except as set forth in connection with Section 5.17(c) of the Company Disclosure Letter, no benefits under any Company Contract will be materially increased, and no vesting of any material benefits under any Company Contract will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement except where such increase or acceleration would not reasonably be expected to result in material liability to the Company or any of its Subsidiaries or loss of any benefit that is material to the Company and Subsidiaries, taken as a whole. Except as set forth in Section 5.17(c) of the Company Disclosure Letter, there are no Company Contracts that require amounts payable by the Company or its Subsidiaries to any officers of the Company or its Subsidiaries (excluding in their capacity as officers) as a result of the transactions contemplated by this Agreement and/or any subsequent employment termination.
(d) Except where the following matters do not and would not constitute, individually or in the aggregate, a Company Material Adverse Effect, with respect to each Company Contract between the Company or any of its Subsidiaries and any Governmental Entity and each outstanding bid, quotation or proposal by the Company or any Company Subsidiary (each, a “Bid”) that if accepted or awarded would lead to a Company Contract between the Company or any of its Subsidiaries and any Governmental Entity (each, a “Company Government Contract”) and each Company Contract between the Company or any of its Subsidiaries and any prime contractor or upper-tier subcontractor relating to a Contract between such payments required by lawPerson and any Governmental Entity and each outstanding Bid that if accepted or awarded would lead to a Material Company Contract between the Company or a Subsidiary of the Company and a prime contractor or upper-tier subcontractor relating to a Contract between such Person and any Governmental Entity (each, a “Company Government Subcontract”):
(i) to the Knowledge of the Company (A) each such Company Government Contract or Company Government Subcontract was legally awarded, is binding on the Company or the applicable Subsidiary of the Company thereto, and is in full force and effect and (B) each such Company Government Contract (or, if applicable, each prime Contract under which such Company Government Subcontract was awarded) is not currently the subject of bid or award protest proceedings;
(ii) the Company and each Subsidiary of the Company have complied in all material respects with all terms and conditions of such Company Government Contract or Company Government Subcontract, including all clauses, provisions and requirements incorporated expressly by reference therein;
(iii) the Company and each Subsidiary of the Company have complied in all material respects with all requirements of all Laws, including the Armed Services Procurement Act, the Federal Property and Administrative Services Act, the FAR, the Defense Federal Acquisition Regulation Supplement, the Truth in Negotiations Act, the government contracts cost principles (FAR Part 31), the Cost Accounting Standards, the Buy American Act, the Trade Agreements Act and the Procurement Integrity Act, whether incorporated explicitly, by reference or by operation of law;
(iv) neither the United States government nor any Business Employee prime contractor, subcontractor or other Person has notified the Company or any current or former officer, director, employee or independent contractor Subsidiary of the Company, in writing, that the Company or any Subsidiary of the Company has breached or violated any Law or material certification, representation, clause, provision or requirement pertaining to such Company Government Contract or Company Government Subcontract, and all facts set forth or acknowledged by any disclosures, representations or certifications submitted by or on behalf of the Company or any Subsidiary of the Company in connection with such Company Government Contract or Company Government Subcontract were current, accurate and complete in all material respects on the date of submission;
(xviv) all collective bargaining agreements, labor agreements, union Contracts or other Contracts with neither the Company nor any labor union, works council, or associate representing any Business Employee or any current or former employees Subsidiary of the Company.
(xvii) all Contracts with a third party distribution intermediary (including online travel agenciesCompany has received any notice of termination for convenience, consortianotice of termination for default, travel management companies and global distribution systems) that produced in excess of 5,000 room nights for the Business during the twelve month period ended September 30, 2017cure notice or show cause notice pertaining to such Company Government Contract or Company Government Subcontract;
(xviiivi) all Contracts with any Governmental Body;
(xix) all Contracts that provide for the indemnification by the Company of any Person (except as entered into in the Ordinary Course of Business); and
(xx) all Contracts would not reasonably be expected to enter into any of the foregoing.
(b) Correct and complete copies of all Company Contracts, including all amendments, modifications and supplements thereto, have been made available to Buyer. Each Company Contract is valid, binding and enforceable in accordance with its terms with respect be material to the Company, andother than in the ordinary course of business consistent with past practice, to the Knowledge of the Company, each other party thereto, in each case, except as such enforceability (i) may be limited no cost incurred by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws affecting or relating to enforcement of creditors’ rights generally, and (ii) is subject to general principles of equity (regardless of whether enforceability is considered in a Legal Proceeding at law or in equity). There is no existing default or breach in any material respect (the Company or any event, circumstance Subsidiary of the Company pertaining to a Company Government Contract or condition that, with Company Government Subcontract has been questioned or challenged or is the giving subject of notice any audit or investigation or has been disallowed by any Governmental Entity; and
(vii) no material payment due to the lapse Company or any Subsidiary of time the Company pertaining to such Company Government Contract or both, would constitute such a default Company Government Subcontract has been withheld based upon negative performance-related allegations or breachclaims and no claim has been made in writing to withhold payment based upon negative performance-related allegations or claims.
(e) by the Company, or, to To the Knowledge of the Company, except as set forth on Section 5.17(e) of the Company Disclosure Letter, neither the Company, any other party Subsidiary of the Company, nor any of their respective directors, officers or employees, is or since April 27, 2006 has been under administrative, civil or criminal investigation, indictment or information by any Governmental Entity, or any audit or investigation by the Company Contract. No party or any Subsidiary of the Company, with respect to any alleged act or omission arising under or relating to any Company Government Contract has exercised or Company Government Subcontract.
(f) There exist (i) no outstanding material claims against the Company or any termination rights with respect theretoSubsidiary of the Company, either by any Governmental Entity or by any prime contractor, subcontractor, vendor or other person, arising under or relating to any Company Government Contract or Company Government Subcontract, and (ii) no party outstanding material claims or requests for equitable adjustment or disputes between the Company or any Subsidiary of the Company and the United States government under the Contract Disputes Act, as amended, or any other Law, or between the Company or any Subsidiary of the Company and any prime contractor, subcontractor, vendor or other person arising under or relating to any Company Government Contract or Company Government Subcontract. To the Knowledge of the Company, neither the Company nor any Subsidiary of the Company received any material adverse or negative past performance evaluations or ratings in connection with any Company Government Contract, Company Government Subcontract or other Contract with a Governmental Entity within the past three years. Neither the Company nor any Subsidiary of the Company has given written (i) any pending material claim against any Governmental Entity, or (ii) any pending material claim against any prime contractor, subcontractor, vendor or other person arising under or relating to any Company Government Contract or Company Government Subcontract.
(g) Except as described in Section 5.17(g) of the Company Disclosure Letter, there are no claims or disputes relating to the Company Government Contracts which, if resolved unfavorably to the Company, would, individually or in the aggregate, have a Company Material Adverse Effect.
(h) To the Knowledge of the Company, since April 27, 2006, neither the Company nor any operating segment has been debarred or suspended for 90 days or more in any consecutive twelve-month period, or proposed for debarment or suspension, or received notice of an intent actual or proposed debarment or suspension, from participation in the award of Contracts with the United States government (excluding for this purpose ineligibility to exercise bid on certain contracts due to generally applicable bidding requirements). To the Knowledge of the Company, since April 27, 2006, there exist no facts or circumstances that would reasonably be expected to result in a finding of non-responsibility or ineligibility on the part of the Company or any termination rights operating segment.
(i) Section 5.17(i) of the Company Disclosure Letter sets forth for each instrument listed thereon (i) the aggregate principal amount outstanding as of November 24, 2010 and (ii) a description of any prepayment, redemption or make-whole payments required to be paid in connection with respect theretothe repayment of such Indebtedness. As of the date of this Agreement, there have been no changes to the principal amounts referenced in clause (i), other than scheduled amortization payments and the accrual of interest in accordance with the terms of such instruments.
Appears in 1 contract
Company Contracts. (a) Except for the Contracts described in Section 2.12(a) of the Company Disclosure Schedule 4.12 sets forth and the Inbound Licenses and Outbound Licenses excepted from disclosure pursuant to Section 2.11(m) and Section 2.11(n), respectively, neither the Company nor any Company Subsidiary is a correct party to or bound by any of the following Contracts:
(i) any distributor, original equipment manufacturer, reseller, value added reseller, sales, advertising, agency or manufacturer’s representative Contract under which the Company or any of the Company Subsidiaries have continuing obligations or costs in excess of one hundred thousand Dollars ($100,000) per year, other than purchase orders in the ordinary course of the Company’s business;
(ii) any continuing Contract for the purchase of materials, supplies, equipment or services, in each case, the performance of which will extend over a period of more than one year and complete listwhich provides for annual payments to or by the Company or any of the Company Subsidiaries that exceed $100,000;
(iii) any Contract relating to or that involves (A) the acquisition by the Company or a Company Subsidiary of any tangible assets of a substantial nature, operating business or capital stock of any other Person, (B) the participation in a joint venture or similar arrangement with any other Person, (C) the making of any other investment in any other Person, (D) a sharing of revenues, profits, cash flows, expenses or losses with other Persons or (E) any Contract that involves the payment of royalties to any other Person;
(iv) any Contract required to be disclosed against the representation in Section 2.11(m) or Section 2.11(n);
(v) any Contract, offer or proposal made by or binding upon the Company or the Company Subsidiary to any customer or potential customer for the sale of products or services having a value of more than fifty thousand Dollars ($50,000), other than price quotations in the ordinary course of business consistent with past practice;
(vi) any Contract (A) that expires or may be renewed at the option of any Person other than the Company or the Company Subsidiaries so as of to expire more than twelve (12) months after the date hereof, (B) requiring the Company or the Company Subsidiary to sell or otherwise provide current or future products or services (including engineering and research and development services), or to provide material support for any current or future products or services, in each case, after the Closing, or (C) not terminable by the Company upon ninety (90) days or less notice by the Company without penalty or obligation to make any payment based on such termination, in each case, other than agreements (x) that do not deviate in any material respect from the Company’s standard form of all software license agreement/customer support agreement made available to Parent, or (y) wherein the obligation to provide such services or support does not extend more than twelve months beyond the date of this Agreement;
(vii) any Contract with any Governmental Entity;
(viii) any 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 following type required to be capitalized in accordance with US GAAP, in each case, in excess of fifty thousand Dollars ($50,000) and other than accounts receivables and payables in the ordinary course of business, consistent with past practice;
(ix) any Contract for capital expenditures in excess of one hundred thousand Dollars ($100,000) individually;
(x) any Contract involving the lease of real property;
(xi) any Contract or plan (including any stock option, merger and/or stock bonus plan) relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any shares of Company Capital Stock or any other securities of the Company or any Company Subsidiaries or any options, warrants, convertible notes or other rights to purchase or otherwise acquire any such shares of stock, other securities or options, warrants or other rights therefor, except for (A) Company Options set forth on Section 2.2(f) of the Company Disclosure Schedule (on the Company’s standard form without material modifications), and (B) the Company Warrant set forth on Section 2.2(h) of the Company Disclosure Schedule;
(xii) any agreement of guarantee, support, indemnification, assumption or endorsement, or any similar Contract with respect to the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or Indebtedness of any other Person;
(xiii) any material strategic alliance, joint development, joint marketing, partnership or similar Contracts (including executed letters of intent and term sheets);
(xiv) any Contract containing any covenant limiting in any material respect the right of the Company or the Company Subsidiaries (i) to engage in any line of business, (ii) to develop, market or distribute products or services, (iii) to compete with any Person, or to grant any exclusive distribution rights with respect to a product or service of the Company, or (iv) to make use of or exploit any Company Intellectual Property or Company Products;
(xv) any Contract for the lease of any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property exceeding one hundred thousand Dollars ($100,000) over the life of such Contract and having a term of more than one year;
(xvi) any employment agreement, severance agreement or change in control agreement or Contract with any current director, officer, employee or consultant of the Company or a Company Subsidiary (in each case, other than those that are terminable at-will by the Company or the Company Subsidiary on no more than thirty (30) days’ notice without liability or financial obligation), or with any person who formerly held any such position if the relevant agreement contains ongoing obligations by the Company or any Company Subsidiary;
(xvii) any Contract providing for the development of any software, content, technology or Intellectual Property, independently or jointly, by or for the Company or any Company Subsidiary;
(xviii) any Contract (other than written agreements entered into in the ordinary course of business, consistent with past practice, on terms that do not materially differ in substance from the Company’s standard forms made available to Parent) under which the Company is or any Company Subsidiary provides any material advice or services to any third party, including any consulting Contract, professional Contract or software implementation, deployment or development services Contract (including, for each such contract, a party or by which any description of its properties or assets are bound or the percentage of completion and expected additional hours, resources and costs necessary to which WS Holdings or its subsidiaries is a party and which Contract relates primarily to the Business (collectively, the “Company Contracts”):complete such services);
(ixix) all Contracts where the performance remaining thereunder involves aggregate consideration to any Contract with any investment banker, broker, advisor or similar party, or any accountant, legal counsel or other Person retained 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 Technology, excluding Off-the-Shelf Licenses;
(xi) all joint venture, limited partnership, or similar agreements between the Company, on the one hand, and any other Person, on the other hand (excluding for the avoidance of doubt, any Franchise Agreements);
(xii) all Affiliate Agreements;
(xiii) all Contracts providing for or relating to the settlement or compromise of any Legal Proceeding to the extent the Company still has any remaining right, obligation or Liability thereunder;
(xiv) all Contracts for employment or engagement of any Business Employee or any officer, employee or independent contractor of the Company on a full-time, part-time, consulting or other basis providing annual base compensation in excess of $100,000 (other than ordinary at-will employment agreements terminable upon less than 30 days’ notice and without any liability to the Company) or Contracts providing for payment of severance in excess of $100,000 (other than severance paid in accordance connection with the Company’s ordinary course severance policies) upon the termination of any Business Employee or any current or former officer, director, employee or independent contractor;
(xv) all Contracts or Seller Benefit Plans providing for any change in control, retention or similar payment, benefit or accelerated vesting upon the execution of this Agreement or the Closing or in connection with any of and the transactions contemplated by this Agreement (excluding any such payments required by law) to any Business Employee or any current or former officer, director, employee or independent contractor of the Company;
(xvi) all collective bargaining agreements, labor agreements, union Contracts or other Contracts with any labor union, works council, or associate representing any Business Employee or any current or former employees of the Company.
(xvii) all Contracts with a third party distribution intermediary (including online travel agencies, consortia, travel management companies and global distribution systems) that produced in excess of 5,000 room nights for the Business during the twelve month period ended September 30, 2017;
(xviii) all Contracts with any Governmental Body;
(xix) all Contracts that provide for the indemnification by the Company of any Person (except as entered into in the Ordinary Course of Business)hereby; and
(xx) all Contracts to enter into any Contract, not otherwise disclosed in Section 2.12(a) of the foregoingCompany Disclosure Schedule, containing any term or obligation of non-assertion, material non-standard discounts, exclusive licensing obligations, provisions for material unpaid future deliverables, material non-standard service requirements, future royalty payments, or “most favored nation” terms.
(b) Correct and complete copies of all Company Contracts, including all amendments, modifications and supplements thereto, have been made available to Buyer. Each Company Contract is valid, binding and enforceable in accordance with its terms with respect to the Company, and, to the Knowledge of the Company, each other party thereto, in each case, except as such enforceability (i) may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws affecting or relating to enforcement of creditors’ rights generally, and (ii) is subject to general principles of equity (regardless of whether enforceability is considered in a Legal Proceeding at law or in equity). There is no existing default or breach in any material respect (or any event, circumstance or condition that, with the giving of notice or the lapse of time or both, would constitute such a default or breach) by the Company, or, to the Knowledge of the Company, any other party under any Company Contract. No party to any Company Contract has exercised any termination rights with respect thereto, and no party has given written notice of an intent to exercise any termination rights with respect thereto.
Appears in 1 contract
Samples: Merger Agreement (Stratasys Ltd.)
