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Common use of Contracts and Commitments Clause in Contracts

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on the attached Schedule 5.11, HI is not a party to or bound by, whether written or oral, any: (i) collective bargaining agreement or contract with any labor union, whether formal or informal; (ii) contract for the employment of any officer, individual employee or group of employees or other person on a full-time, part-time or consulting basis or any severance agreements; (iii) agreement or indenture relating to the borrowing of money or to placing a Lien on any of the assets of HI; (iv) agreements with respects to the lending or investing of funds; (v) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of business; (vii) lease or agreement under which HI is lessee of, or holds or operates, any personal property owned by any other party for which annual rental exceeds $50,000; (viii) lease or agreement under which HI is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which annual rental exceeds $50,000; (ix) contract or group of related contracts with the same party for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance over a period of more than one year and involves a sum in excess of $50,000 per year; (x) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits it from freely engaging in business anywhere in the world; or (xiii) any other agreement material to HI not entered into in the ordinary course of business. (b) Except as specifically contemplated by this Agreement, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11. (c) HI has provided the Investor with a true and correct copy of all written contracts which are referred to on Schedule 5.11 which have been requested by Investors, together with all amendments, waivers or other changes thereto.

Appears in 3 contracts

Samples: Investment Agreement (Harris Interactive Inc), Investment Agreement (Harris Interactive Inc), Investment Agreement (Harris Interactive Inc)

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Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on Schedule 4.10, none of the attached Schedule 5.11Company, HI Newco or any of the Sold Subsidiaries is not a party to or bound byany: (i) Contract relating to any acquisition of a business, whether written by acquisition of equity interests or oralby asset acquisition, any: by the Company, Newco or any Sold Subsidiary within the last three (i3) years or under which the Company, Newco or any Sold Subsidiary has any ongoing material rights or Liabilities; (ii) collective bargaining agreement or contract with any labor unionsimilar Contract (each, whether formal or informal; a "Collective Bargaining Agreement"); (iiiii) contract Contract for the employment of any officer, individual employee or group of employees or other person on a full-time, part-time or consulting basis providing for base compensation or any severance agreements; other monetary compensation in excess in the aggregate of $75,000 per annum; (iiiiv) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien on any material portion of the Company's, Newco's or the Sold Subsidiaries' assets or any other Contract governing any Indebtedness of HI; (iv) agreements with respects to the lending Company, Newco or investing any of funds; the Sold Subsidiaries; (v) guaranty of any obligation for borrowed money lease, agreement or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of business; (vii) lease or agreement Contract under which HI it is lessee of, of or holds or operates, operates any tangible personal property owned by any other party party, for which the annual rental rent exceeds $50,000; 25,000; (viiivi) lease lease, agreement or agreement other Contract under which HI it is lessor of or permits any third party to hold or operate any personal property, real or personal, owned or controlled by it for which the annual rental rent exceeds $50,000; 25,000; (ixvii) contract Contract or group of related contracts Contracts with the same party for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance over a period of more than one year and involves a sum in excess of $50,000 per year; (x) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more other than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits it from freely engaging in business anywhere in the world; or (xiii) any other agreement material to HI not purchase orders entered into in the ordinary course of business), under which the undelivered balance of such products or services has a sales price in excess of $100,000 for the current calendar year or any subsequent year or which is not terminable on less than ninety (90) days' notice; (viii) Contract or group of related Contracts with the same party for the sale of products or services (other than purchase orders entered into in the ordinary course of business), under which the undelivered balance of such products or services has a sales price in excess of $100,000 for the current calendar year or any subsequent year; (ix) Contract which (i) prohibits the Company, Newco or the Sold Subsidiaries from freely engaging in the Businesses anywhere in the world (other than confidentiality agreements entered into in the ordinary course of business) or (ii) contains any exclusivity, non-competition, "most-favored nation," non-solicitation or no-hire provisions; (x) joint venture, strategic alliance, partnership or any similar Contract that provides for the sharing of profits, losses, costs, liabilities or proprietary information by the Company, Newco and the Sold Subsidiaries; (xi) license, royalty agreement or similar Contract relating to the Company Intellectual Property and which require the expenditure of more than $25,000 per annum, other than commercially available software subject to "shrink wrap" licenses; (xii) sales representative, agency, distribution agreements or other similar Contracts for the sale of products of the Company, Newco or any Sold Subsidiary (other than, for the avoidance of doubt, purchase orders entered into in the ordinary course of business); (xiii) any Contract providing for a Change-of-Control Payment; or (xiv) Contract under which the Company, Newco or any Sold Subsidiary acts as a guarantor, surety or, other than the ordinary course of business, indemnitor of any other Person. (b) Except as specifically contemplated by this Agreement, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 Buyer has been breached or canceled by the other party since June 30, 1999, (ii) HI has performed in all material respects all of the obligations required given access to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11. (c) HI has provided the Investor with a true and correct copy of all written contracts which are referred required to be listed on Schedule 5.11 which have been requested by Investors4.10 (the "Material Contracts"), together with all amendments, waivers or other changes thereto, other than oral Material Contracts, a summary of the material terms of each of which is set forth on Schedule 4.10. (c) None of the Company, Newco nor any of the Sold Subsidiaries is in breach of or default under any Material Contract (nor has any event occurred that, with the giving of notice or the passage of time or both would result in a breach or default by the Company, Newco or any Sold Subsidiary) and, to the Company's Knowledge, the other party to each of the contracts listed on Schedule 4.10 is not in material breach of or default thereunder. Each Material Contract represents the legal, valid, binding and enforceable obligation of the Company, Newco or one of the Sold Subsidiaries, as applicable, and, to the Knowledge of the Company, each counterparty thereto.

Appears in 3 contracts

Samples: Stock Purchase Agreement (Steel Partners Holdings L.P.), Stock Purchase Agreement (Handy & Harman Ltd.), Stock Purchase Agreement (Rogers Corp)

Contracts and Commitments. (a) Except as specifically expressly contemplated by this Agreement and except or as set forth on the attached Schedule 5.11CONTRACTS SCHEDULE, HI the Company is not a party (including after giving effect to or bound by, whether the Company) to any written or oral: (a) pension, any: (i) collective bargaining agreement profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to employees or any other employee benefit plan or arrangement, or any contract with any labor union, whether formal or informal; any severance agreements; (iib) contract for the employment of any officer, individual employee or group of employees or other person Person on a full-time, part-time time, consulting or consulting other basis providing annual compensation in excess of $25,000 or contract relating to loans to officers, directors or affiliates; (c) contract under which the Company has advanced or loaned any severance agreements; other Persons amounts in the aggregate exceeding $25,000; (iiid) agreement or indenture relating to the borrowing of money or to the mortgaging, pledging or otherwise placing a Lien on any material asset or group of assets of the assets of HI; Company; (ive) agreements with respects to the lending or investing of funds; (v) guaranty Guarantee of any obligation for borrowed money or otherwise, (other than endorsements made for collection; by the Company of a wholly-owned Subsidiary's debts or a guarantee by a Subsidiary of the Company's debts or another Subsidiary's debts); (vi) license or royalty agreements except those entered into in the ordinary course of business; (viif) lease or agreement under which HI the Company or any Subsidiary is lessee of, of or holds or operatesoperates any property, any personal property real or personal, owned by any other party party, except for any lease of real or personal property under which the aggregate annual rental exceeds payments do not exceed $50,000; 25,000; (viiig) lease or agreement under which HI the Company or any Subsidiary is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which annual rental exceeds $50,000; the Company or any Subsidiary; (ixh) contract or group of related contracts with the same party for or group of affiliated parties the purchase or sale performance of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance over a period of more than one year and involves a sum aggregate annual consideration in excess of $50,000 per year; (x) contract relating 25,000 except purchase orders from existing customers or to the distributionexisting vendors, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits it from freely engaging in business anywhere in the world; or (xiii) any other agreement material to HI not entered into either case in the ordinary course of business.; (b) Except as specifically contemplated by this Agreement, or disclosed on Schedule 5.11, (i) no assignment, license, indemnification or agreement with respect to any intangible property (including, without limitation, any patent, trademark, trade name, copyright, know-how, trade secret or confidential information); (j) warranty agreement with respect to its services rendered or its products sold or leased; (k) agreement under which it has granted any Person any registration rights (including piggyback rights); (l) contract, agreement or other arrangement with any officer, director, employee or Affiliate, or any Affiliate of any officer, director or employee; (m) contract or commitment agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or (n) any other agreement which is material to its operations and business prospects or which involves a consideration in excess of $25,000 annually. Except as set forth on the CONTRACTS SCHEDULE, all of the contracts, agreements and instruments required to be disclosed listed thereon are valid, binding and enforceable in accordance with their respective terms. Except as set forth on Schedule 5.11 the CONTRACTS SCHEDULE, the Company and its Subsidiaries are not in default or breach under any such contract, agreement or instrument; no event has been breached occurred which with the passage of time or canceled by the other party since June 30giving of notice or both would result in a default, 1999breach or event of noncompliance under any such contract, (ii) HI has performed in all material respects all agreement or instrument listed on the CONTRACTS SCHEDULE; none of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, Company and is not in receipt of its Subsidiaries has any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing all such obligations; none of the Company and its Subsidiaries has any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by the other parties to any such contract or commitment; and none of the Company and its Subsidiaries is a party to any contract specific on Schedule 5.11or commitment the performance of which would have a Materially Adverse Effect. (c) HI has provided the Investor with a true and correct copy of all written contracts which are referred to on Schedule 5.11 which have been requested by Investors, together with all amendments, waivers or other changes thereto.

Appears in 3 contracts

Samples: Senior Subordinated Note, Preferred Stock and Warrant Purchase Agreement (Zimmerman Sign Co), Senior Subordinated Note, Preferred Stock and Warrant Purchase Agreement (Anderson David E), Senior Subordinated Note, Preferred Stock and Warrant Purchase Agreement (Boner Tom E)

Contracts and Commitments. (a) Except as specifically contemplated Section 4.11 of the MediSync Disclosure Schedules sets forth, by reference to the applicable subsection of this Agreement and except as set forth on Section 4.11, all of the attached Schedule 5.11, HI following contracts to which MediSync is not a party to or by which MediSync or its assets of properties are bound by(collectively, whether written or oral, any: the “MediSync Material Contracts”): (i) collective bargaining agreement or contract with any labor union, whether formal or informal; (ii) contract for the employment of any officer, individual employee or group of employees or other person on a full-time, part-time or consulting basis or any severance agreements; basis; (iiiii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien lien on any material portion of the assets of HI; MediSync’s assets; (iv) agreements with respects to the lending or investing of funds; (viii) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; material guaranty; (vi) license or royalty agreements except those entered into in the ordinary course of business; (viiiv) lease or agreement under which HI it is lessee of, or holds or operates, operates any personal property owned by any other party party, for which the annual rental rent exceeds $50,000; 25,000; (viiiv) lease or agreement under which HI it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which the annual rental rent exceeds $50,000; 25,000; (ixvi) contract or group of related contracts with the same party for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for services, under which the furnishing or receipt undelivered balance of such products and services which either calls for performance over has a period of more than one year and involves a sum selling price in excess of $50,000 per year; 100,000; (xvii) contract relating to or group of related contracts with the distribution, marketing or sales same party for the sale of its products or services under which the undelivered balance of such products or services has a sales price in excess of $100,000; (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; (xi) franchise agreements, (xiiviii) contract which prohibits it MediSync from freely engaging in business anywhere in the world; (ix) contract with any officer or director (other than for employment); (x) contract which is expected to involve payment or receipt by MediSync of aggregate consideration in excess of $100,000 in the 12-month period immediately following the Closing Date or over the life of the contract; (xi) contract relating to a joint-venture, partnership or similar agreement; (xii) stock purchase agreement, asset purchase agreement or other acquisition or divestiture agreement; or and (xiii) any other agreement contract which is material to HI the business of MediSync and was not entered into in the ordinary course of businessMediSync Ordinary Course. (b) Except as specifically contemplated by this Agreement, or disclosed on Schedule 5.11, set forth in Section 4.11 of the MediSync Disclosure Schedules: (i) no contract or commitment required to be disclosed on Schedule 5.11 MediSync has been breached or canceled by complied with all material terms and requirements of the other party since June 30, 1999, MediSync Material Contracts; (ii) HI to the Knowledge of MediSync, no event has performed occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in all material respects all of a violation or breach of, or give MediSync or any other Person the obligations right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, the MediSync Material Contracts; and (iii) MediSync is not required to be performed by HI obtain any consent from, or provide notice to, any Person under the MediSync Material Contracts in connection with the contracts execution and delivery of this Agreement or commitments required to be disclosed on the Schedule 5.11, and is not in receipt consummation or performance of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11Contemplated Transactions. (c) HI has provided the Investor with a true and correct copy of all written contracts which are referred to on Schedule 5.11 which have been requested by Investors, together with all amendments, waivers or other changes thereto.

Appears in 2 contracts

Samples: Merger Agreement (Vyteris, Inc.), Merger Agreement (Vyteris, Inc.)

Contracts and Commitments. (ai) Except as specifically expressly contemplated by this Agreement and except or as set forth on the attached Contracts Schedule 5.11or the attached Employee Benefits Schedule, HI no Security Party or any of its Subsidiaries is not a party to or bound by, whether by any written or oral: (a) pension, any: (i) profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to employees or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, whether formal or informal; severance agreements, programs, policies or arrangements; (iib) contract for the employment of any officer, individual employee or group of employees or other person Person on a full-time, part-time time, consulting or consulting other basis providing annual compensation in excess of $100,000 or contract relating to loans to officers, directors or Affiliates; (c) contract under which a Security Party or its Subsidiaries has advanced or loaned any severance agreements; other Person amounts in the aggregate exceeding $25,000; (iiid) agreement or indenture relating to the borrowing of borrowed money or to other Indebtedness or the mortgaging, pledging or otherwise placing a Lien on any material asset or material group of the assets of HI; a Security Party or its Subsidiaries; (ive) agreements with respects to the lending or investing of funds; (v) guaranty Guarantee of any obligation for borrowed money or otherwise, other than endorsements made for collection; in excess of $50,000; (vi) license or royalty agreements except those entered into in the ordinary course of business; (viif) lease or agreement under which HI a Security Party or any of its Subsidiaries is lessee of, or holds or operates, any personal property owned by any other party for which annual rental exceeds $50,000; (viii) lease or agreement under which HI is lessor of or permits any third party to hold or operate any property, real or personal, owned except for any lease of real or controlled by it for personal property under which the aggregate annual rental exceeds payments do not exceed $50,000; (g) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights); (h) warranty agreement with respect to its services rendered or its products sold or leased; (i) agreement under which it has granted any Person any registration rights (including demand and piggyback registration rights); (j) sales, distribution or franchise agreement; (k) material agreement with a term of more than six months which is not terminable by a Security Party or any of its Subsidiaries upon less than 30 days notice without penalty; or (ixl) contract or group of related contracts with the same party for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance over a period of more than one year and involves a sum in excess of $50,000 per year; (x) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or (xiii) any other agreement material to HI not entered into in the ordinary course of business. (bii) Except as specifically contemplated by this AgreementAll of the contracts, agreements and instruments set forth on the Contracts Schedule are valid, binding and enforceable against each Security Party or disclosed on Schedule 5.11any of its Subsidiaries party thereto and to the best of its knowledge, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the against any other party since June 30thereto, 1999, (ii) HI has in each case in accordance with their respective terms. Each Security Party and its Subsidiaries have performed in all material respects all of the obligations required to be performed by HI them and are not in connection with the contracts default under or commitments required to be disclosed on the Schedule 5.11, and is not in breach of nor in receipt of any claim of default or breach under any contract material contract, agreement or commitment required instrument to be disclosed on which such Security Party or any of its Subsidiaries is subject; no event has occurred which with the Schedule 5.11passage of time or the giving of notice or both would result in a default, (iii) HI breach or event of noncompliance by such Security Party or any of its Subsidiaries under any material contract, agreement or instrument to which such Security Party or any of its Subsidiaries is subject; no Security Party or any of its Subsidiaries has no any present expectation or intention of not fully performing all such obligations; no Security Party or any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI of its Subsidiaries has no knowledge of any material breach or anticipated material breach by the other parties to any material contract, agreement, instrument or commitment to which it is a party; no Security Party or any of its Subsidiaries has delivered or received written notice or oral notice to a Responsible Officer of, or has knowledge that any other party intends to deliver any notice of, termination or non-renewal of term under any material contract, agreement or instrument to which such Security Party or any of its Subsidiaries is subject; and no Security Party or any of its respective Subsidiaries is a party to any contract specific on Schedule 5.11requiring it to purchase or sell goods or services or lease property above or below (as the case may be) prevailing market prices and rates or any other materially adverse contract or commitment in excess of $100,000 in the aggregate for all such contracts or commitments. (c) HI has provided the Investor with a true and correct copy of all written contracts which are referred to on Schedule 5.11 which have been requested by Investors, together with all amendments, waivers or other changes thereto.

Appears in 2 contracts

Samples: Note and Warrant Purchase Agreement (Thane International Inc), Note and Warrant Purchase Agreement (Thane International Inc)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on the attached Schedule 5.11, HI is not a party to or bound by1.01(d) lists all agreements, whether written oral or oralwritten, anyto which Seller is a party, which are currently in effect, and which relate to the operation of the Business or the Assets, including, without limitation: (i) collective bargaining agreement or contract with any labor union, whether formal or informal; (ii) each contract for the employment of any officer, individual employee or group of employees or other person on a full-time, part-time or consulting basis who performs functions in connection with the Business or relating to severance pay for any severance agreementssuch person; (ii) each confidentiality agreement; (iii) each agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien lien on any of the assets of HIAssets; (iv) agreements with respects to the lending or investing of funds; (v) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of business; (vii) each lease or agreement relating to the Business under which HI Seller is lessee of, or holds or operates, any personal property owned by any other party for which annual rental exceeds $50,000; (viii) lease or agreement under which HI is lessor of or permits any third party to hold or operate operates any property, real or personal, owned or controlled by it any other party, for which the annual rental exceeds $50,0002,000; (ixv) each contract or group of related contracts (including purchase orders) with the same party for the purchase of products or services under which the undelivered balance of such products or services of the Business is in excess of $2,000; (vi) each contract or group of related contracts with the same party for the sale of products or services of the Business under which the undelivered balance of such products or services has a sales price in excess of $2,000; (vii) each contract or group of related contracts relating to the Business with the same party (other than any contract or group of related contracts for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance services) continuing over a period of more than one year six months from the date or dates thereof, not terminable by it on 30 days' or less notice without penalty and involves a sum in excess of $50,000 per year; (x) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year2,000; (xiviii) franchise agreements, (xii) each contract which prohibits it Seller from freely engaging in business anywhere in the world; (ix) each contract for the sale or distribution of any of the products of the Business (including any distributor, sales and original equipment manufacturer contract); (x) each franchise agreement relating to the Business; (xi) each license agreement or agreement providing for the payment or receipt of royalties or other compensation by Seller in connection with the intellectual property rights listed in Schedule 1.01(g); (vii) each contract or commitment for capital expenditures of the Business in excess of $2,000; (xviii) agreement for the sale of any Asset; or (xiiixix) any other agreement which is either material to HI the Business or was not entered into in the ordinary course of business. (b) Except as specifically contemplated by this Agreement, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI Seller has performed in all material respects all of the obligations required to be performed by HI it in connection with the contracts or commitments required to be disclosed on the contained in Schedule 5.11, 1.01(d) and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI under such caption; Seller has no present expectation or intention of not fully performing any material obligation pursuant to any contract set forth on Schedule 5.11, or commitment required to be disclosed under such caption; and (iv) HI Seller has no knowledge of any material breach or anticipated material breach by any other party to any contract specific on Schedule 5.11or commitment required to be disclosed under such caption. (c) HI Prior to the date of this Agreement, Buyer has provided the Investor been supplied with a true and correct copy of all each written contracts which are referred to on contract or commitment, and a written description of each oral contract or commitment, contained in Schedule 5.11 which have been requested by Investors1.01(d), together with all amendments, waivers or other changes thereto.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Henley Healthcare Inc), Asset Purchase Agreement (Rehabilicare Inc)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement Schedule 4.12(a) hereto sets forth a true, complete and except as set forth correct list of every Contract (other than Contracts with, on behalf of or through a Buyer Party or any of their Affiliates other than the attached Schedule 5.11, HI Acquired Companies) to which an Acquired Company is not a party to or bound by, whether written or oral, any: that: (i) collective bargaining agreement provides for aggregate future payments by an Acquired Company, or contract with any labor unionto an Acquired Company, whether formal or informal; of more than $250,000; (ii) contract is a Contract not entered into in the ordinary course of business which provides for aggregate future payments during the employment 12 months following the Closing Date by an Acquired Company or to an Acquired Company in excess of any officer, individual employee or group of employees or other person on a full-time, part-time or consulting basis or any severance agreements; $100,000; (iii) agreement or indenture relating to provides for aggregate future payments during the borrowing of money 12 months following the Closing Date by an Acquired Company, or to placing a Lien on an Acquired Company, of more than $100,000 and has an unexpired term (including pursuant to an option to renew or extend) exceeding one year and may not be canceled upon 90 days’ notice or less without any of the assets of HI; Liability, penalty or premium; (iv) agreements was entered into by an Acquired Company with respects an Affiliate, equity holder, officer, director or employee of an Acquired Company or Seller other than Employment Agreements referred to the lending or investing of funds; in Section 4.12(a)(viii) below; (v) guaranty of any obligation for borrowed money is a collective bargaining Contract or otherwise, other than endorsements made for collection; Contract with a labor union; (vi) license is a Contract with respect to any Indebtedness of an Acquired Company; (vii) after the Closing Date purports to restrict (whether or royalty not legally binding) an Acquired Company from engaging in any business or activity anywhere in the world or purports to limit individuals who may be solicited for employment or employed by an Acquired Company (other than confidentiality or non-disclosure agreements except those entered into in the ordinary course of business; (vii) lease or agreement under which HI is lessee of, or holds or operates, any personal property owned by any other party for which annual rental exceeds $50,000; ); (viii) lease is an employment Contract, severance Contract, consulting Contract or agreement under similar arrangement to which HI an Acquired Company is lessor of or permits any third a party to hold or operate any property, real or personal, owned or controlled by it for which annual rental exceeds $50,000; (ix) contract or group of related contracts with the same party for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance over a period of more than one year and involves a sum is in excess of $50,000 per year; 100,000; (ix) is an equity holders agreement, or is with respect to a partnership, joint venture or other sharing of profits or losses; (x) contract relating to the distribution, marketing or sales is a power of its products or services attorney that is in full force and effect (including contracts to provide advertising allowances or promotional services) involving more other than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits it from freely engaging in business anywhere in the world; or (xiii) any other agreement material to HI not customs powers of attorney entered into in the ordinary course of business); (xi) is a guarantee or similar undertaking with respect to payment (involving future aggregate payments in excess of $100,000) or performance; (xii) is with respect to the acquisition or disposition of Property not in the ordinary course of business; (xiii) is in the nature of securitizations, synthetic leases, operating leases or similar structured financings providing off-balance sheet financing; (xiv) grants exclusive manufacturing rights to any Person; (xv) provides for exclusive marketing or distribution rights; (xvi) has a “most favored nation” or similar pricing provision; (xvii) provides for the exclusive purchasing of goods or services; (xviii) is with a customer that is a buying group; (xix) has a “price down” provision; or (xx) is an amendment, supplement or modification in respect of the foregoing. (those Contracts agreements listed under subsection (viii) on Schedule 4.12(a) are collectively referred to as the “Employment Agreements” and those Contracts listed anywhere on Schedule 4.12(a) are collectively referred to as the “Acquired Company Contracts”). (b) Except as specifically contemplated by this Agreement, or disclosed on set forth in Schedule 5.114.12(b), (i) no contract there is not and, to Seller’s Knowledge, there has not been claimed or commitment required alleged by any Person with respect to be disclosed any Acquired Company Contract any existing or uncured material Breach or event that, with notice or lapse of time or both, would constitute a material Breach on Schedule 5.11 the part of an Acquired Company, or, to Seller’s Knowledge, on the part of any other party thereto, and to Seller’s Knowledge none of the foregoing has been breached or canceled by the other party since June 30, 1999threatened in writing, (ii) HI has performed no Consent from, or notice to, any Governmental Entity or other Person is required in all material respects all order to maintain in full force and effect any of the obligations required to be performed by HI in connection with Acquired Company Contracts following the contracts or commitments required to be disclosed on consummation of the Schedule 5.11, Transactions (other than such Consents that have been obtained and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, such notices that have been duly given) and (iii) HI has no present expectation or intention each of not fully performing any obligation pursuant the Acquired Company Contracts is in full force and effect and is valid and enforceable in accordance with its terms against the applicable Acquired Company and to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party Seller’s Knowledge to any contract specific on Schedule 5.11other parties thereto. (c) HI has provided the Investor with Schedule 4.12(c) sets forth a true and correct copy list of all written contracts Contracts pursuant to which are referred any Acquired Company receives any rights or benefits but to on Schedule 5.11 which have been requested by Investorsit is not a party, together with all amendmentsincluding supply Contracts (collectively, waivers or other changes theretothe “Non-Party Contracts”).

Appears in 2 contracts

Samples: Stock Purchase Agreement (Vitro Sa De Cv), Stock Purchase Agreement (Vitro Sa De Cv)

Contracts and Commitments. (a) Except as specifically Schedule 3.15(a) of the Disclosure Schedule sets forth each of the following types of Contracts currently in force pursuant to which any of A2iA and its Subsidiaries is a party or is bound (each a “Material Contract”): (i) any Contract that provides for post-employment or post-consulting liabilities or obligations, including severance pay other than obligations associated with any non-compete undertaking (A) the enforcement of which can be waived by A2iA or its Subsidiary at its exclusive election and (B) for which a waiver by A2iA or its Subsidiary will result in avoidance of such obligation; (ii) any Contract or A2iA Employee Plan under which payments or obligations owed to any employee of A2iA or any of its Subsidiaries will be increased, accelerated or vested by the occurrence (whether alone or in conjunction with any other event) of any of the transactions contemplated by this Agreement and except as set forth or under which the value of the payments or obligations will be calculated on the attached Schedule 5.11, HI is not a party to or bound bybasis of any of the transactions contemplated by this Agreement, whether written pursuant to a change in control or oral, any: otherwise; (iiii) any collective bargaining agreement agreements, including the CBA, or contract other Contract with any labor union, whether formal union or informal; (ii) contract for the employment of any officer, individual employee or group similar Representative of employees or other person on a full-time, part-time or consulting basis of A2iA or any severance agreements; of its Subsidiaries; (iiiiv) agreement or indenture any Contract relating to the borrowing disposition or acquisition of money or to placing a Lien on any of the assets of HI; (iv) agreements with respects to the lending or investing of funds; (v) guaranty of any obligation for borrowed money or otherwiseassets, in each case other than endorsements made for collection; (vi) license or royalty agreements except those entered into inventory sold in the ordinary course of business; business and consistent with past practice; (viiv) lease any Contract relating to an ownership interest in any corporation, partnership, joint venture or agreement other business enterprise or Person; (vi) any Contract for the purchase of materials, supplies, equipment or services (1) from a Related Party or (2) under which HI is lessee of, or holds or operates, any personal property owned by any other the aggregate payments made to one party for which annual rental exceeds $50,000; (viii) lease or agreement under which HI is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which annual rental exceeds $50,000; (ix) contract or group of related contracts with parties during the same party for the purchase or sale of raw materialspast twelve (12) months exceeded, commodities, supplies, products or other personal property or for the furnishing following twelve (12) months is expected to exceed, €150,000; (vii) any Contract with a Material Supplier; (viii) any Contract with a Material Customer; (ix) any Contract relating to the acquisition, transfer or receipt development of services which either calls for performance over a period any Intellectual Property or Intellectual Property Rights owned by A2iA or one of more its Subsidiaries, incorporated into any of the A2iA Products or otherwise used in the conduct of the businesses of A2iA or any of its Subsidiaries other than one year and involves a sum in excess of $50,000 per year; (A) any intercompany Contract or (B) any employment Contract, including any Contracts with trainees or temporary workers; (x) contract any Outbound IP Licenses; (xi) any Inbound IP Licenses; (xii) any Contract relating to the distribution, marketing guarantee (whether absolute or sales contingent) by A2iA or any of its products Subsidiaries of (1) the performance of any other Person (other than A2iA or services one of its Subsidiaries) or (including contracts to provide advertising allowances 2) the whole or promotional services) involving more any part of the indebtedness or liabilities of any other Person (other than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits it from freely engaging in business anywhere in the world; A2iA or one of its Subsidiaries); (xiii) any Contract containing an obligation to indemnify any officer, director, manager or agent of A2iA or any of its Subsidiaries other agreement material than obligations associated with any non-compete undertaking (A) the enforcement of which can be waived by A2iA or its Subsidiary at its exclusive election and (B) for which a waiver by A2iA or its Subsidiary will result in avoidance of such obligation; (xiv) any Contract which limits or restricts (1) where A2iA or any of its Subsidiaries may conduct business, (2) where A2iA or any of its Subsidiaries may use, exploit, assert or enforce any A2iA IP, (3) the type or lines of business in which A2iA or any of its Subsidiaries may engage or (4) any acquisition of assets or stock (tangible or intangible) by A2iA or any of its Subsidiaries; (xv) any Contract under which the aggregate payments or receipts for the past twelve (12) months exceeded, or for the following twelve (12) months is expected to HI exceed, €250,000 and that cannot entered into be terminated by A2iA or its applicable Subsidiary at will on less than ninety (90) days’ notice; (xvi) any Contract for the borrowing or lending of money, or the availability of credit (except credit extended by A2iA or any of its Subsidiaries to customers in the ordinary course of businessbusiness and consistent with past practice); (xvii) any Real Property Lease; (xviii) any Contract providing for any individual capital expenditure of €50,000 or more during any twelve (12) month period or capital expenditures of €150,000 or more, in the aggregate, over the life of the Contract; (xix) any Contract relating to any hedging, option, derivative or other similar transaction and any foreign exchange position or contract for the exchange of currency; and (xx) any other Contract material to the businesses of A2iA and its Subsidiaries. (b) Except as specifically contemplated by this Agreement, or disclosed on Schedule 5.11, An accurate and complete copy of each Material Contract (iincluding all amendments thereto) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI has performed in all material respects all of the obligations required made available to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11Buyer. (c) HI Neither A2iA nor its Subsidiaries, nor, to the Sellers’ Knowledge, any other party to a Material Contract, is in breach, violation or default under, or has provided received written notice that it has breached, violated or defaulted under (nor does there exist any condition under which, with the Investor passage of time or the giving of notice or both, would reasonably be expected to cause such a breach, violation or default under) any Material Contract. (d) Except as set forth in Schedule 3.15(d) of the Disclosure Schedule, each Material Contract is a valid, binding and enforceable obligation of A2iA and/or its Subsidiary party to such Material Contract and, to the Sellers’ Knowledge, the other party or parties thereto, in accordance with a true its terms and correct copy of all written contracts which are referred is in full force and effect, in each case except to on Schedule 5.11 which have been requested the extent enforcement may be limited by Investorsapplicable bankruptcy, together with all amendmentsinsolvency, waivers reorganization, moratorium or other changes theretolaws affecting creditors’ rights generally or by general equitable principles or by principles of good faith and fair dealing (regardless of whether enforcement is sought in equity or at law).

Appears in 1 contract

Samples: Share Purchase Agreement (Mitek Systems Inc)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on Neither the attached Schedule 5.11, HI Company nor any of the Subsidiaries is not a party to or bound by, whether written or oral, any: any of the following (a “Contract”): (i) agreement relating to any completed material business acquisition or divestiture by the Company or any of the Subsidiaries within the last three (3) years; (ii) collective bargaining agreement or contract with any labor union, whether formal or informal; (iiiii) written or other material bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 5.12 or the Schedules relating thereto; (iv) stock purchase, stock option or similar plan; (v) contract for the employment of any officer, individual employee or group of employees or other person on a full-time, part-time or consulting basis or any severance agreementswith annual payments in excess of $100,000; (iiivi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien on any portion of the assets Company’s or any of HIthe Subsidiaries’ assets, other than Permitted Liens; (iv) agreements with respects to the lending or investing of funds; (vvii) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of business; (vii) lease or agreement under which HI is lessee of, or holds or operates, any personal property owned by any other party for which annual rental exceeds $50,000guaranty; (viii) lease or agreement under which HI it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $250,000; (ix) lease or agreement under which it is lessor of of, or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which the annual rental exceeds $50,000100,000; (ixx) contract or group of related contracts with the same party for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for services, under which the furnishing or receipt undelivered balance of such products and services which either calls for performance over has a period of more than one year and involves a sum selling price in excess of $50,000 per year; (x) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year500,000; (xi) franchise agreements, contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $500,000; (xii) contract which prohibits it the Company or any of the Subsidiaries from freely engaging in business anywhere or from competing with any Person, (xiii) agreement with any distributor, dealer or sales representative; (xiv) joint venture agreement; (xv) agreement for any Indebtedness; (xvi) contract with any governmental authority; (xvii) material agreement, arrangement or program pursuant to which the Company has offered or made available to its customers (including its distributors) any volume discount, rebate or advertising or promotional credit or allowance which in the worldtotal is greater than $100,000 per year per customer; or (xiiixviii) power of attorney; (xix) management services agreement or (xx) any other agreement material to HI not entered into agreement, the performance of which will involve consideration in the ordinary course excess of business$500,000. (b) Except as specifically contemplated by this AgreementThe Buyer either has been supplied with, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30given access to, 1999, (ii) HI has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11. (c) HI has provided the Investor with a true complete and correct copy of all written contracts which are referred to on Schedule 5.11 which have been requested by InvestorsContracts, together with all material amendments, waivers or other changes thereto. (c) Neither the Company nor any of the Subsidiaries nor, to the knowledge of the Company, any other party to the Contract, is in default in any material respect under any Contract.

Appears in 1 contract

Samples: Stock Purchase Agreement (Castle a M & Co)

Contracts and Commitments. (a) Except as specifically set forth on Schedule 3.13, or except as contemplated by this Agreement and except as set forth Agreement, neither Company, nor the Company Subsidiaries, nor the entities listed on the attached Schedule 5.11, HI 3.1(b)3.1(b) is not a party to or bound byby any oral or written contract, whether written obligation or oral, any: commitment of any type in any of the following categories: (i) collective bargaining agreement agreements or contract arrangements that provide for employment other than at will or that contain severance pay, understandings with any labor unionrespect to tax arrangements, whether formal understandings with respect to expatriate benefits, or informal; post-employment liabilities or obligations; (ii) contract for agreements or plans under which benefits will be increased or accelerated by the employment occurrence of any officerof the transactions contemplated by this Agreement, individual employee or group under which the value of employees or other person the benefits will be calculated on a full-time, part-time or consulting the basis or of any severance agreements; of the transactions contemplated by this Agreement; (iii) agreement agreements, contracts or indenture commitments currently in force relating to the borrowing disposition or acquisition of money or to placing a Lien on any of the assets of HI; (iv) agreements with respects to the lending or investing of funds; (v) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of business; , or relating to an ownership interest in any corporation, partnership, joint venture or other business enterprise; (iv) agreements, contracts or commitments for the purchase of materials, supplies or equipment, under which the aggregate payments for the past twelve (12) months exceeded $100,000, which are with sole or single source suppliers; (v) guarantees or other agreements, contracts or commitments under which Company or any of the Company Subsidiaries is absolutely or contingently liable for (A) the performance of any other Person, firm or corporation (other than Company or the Company Subsidiaries), (B) the whole or any part of the indebtedness or liabilities of any other Person, firm or corporation (other than Company or the Company Subsidiaries), or (C) indemnification obligations to officers and directors; (vi) powers of attorney authorizing the incurrence of a material obligation on the part of Company or the Company Subsidiaries; (vii) lease agreements, contracts or agreement under commitments which HI is lessee oflimit or restrict (A) where Company or any of the Company Subsidiaries may conduct business, (B) the type or lines of business (current or future) in which they may engage, or holds (C) any acquisition of assets or operates, stock (tangible or intangible) by Company or any personal property owned by any other party for which annual rental exceeds $50,000; of the Company Subsidiaries; (viii) lease agreements, contracts or agreement commitments, under which HI is lessor the aggregate payments or receipts for the past 12 months exceeded $100,000, containing any agreement with respect to a change of control of Company or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which annual rental exceeds $50,000; of the Company Subsidiaries; (ix) contract agreements, contracts or group of related contracts with the same party commitments for the purchase borrowing or sale lending of raw materialsmoney, commodities, supplies, products or other personal property the availability of credit (except credit extended by Company or for any of the furnishing or receipt of services which either calls for performance over a period of more than one year and involves a sum in excess of $50,000 per year; (x) contract relating Company Subsidiaries to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits it from freely engaging in business anywhere in the world; or (xiii) any other agreement material to HI not entered into customers in the ordinary course of businessbusiness and consistent with past practice); (x) any hedging, option, derivative or other similar transaction and any foreign exchange position or contract for the exchange of currency; or (xi) any agreement, contract or commitment that would be otherwise required to be filed as an exhibit to a periodic report under the Exchange Act, as provided by Rule 601 of Regulation S-K promulgated under the Exchange Act. Each contract, agreement or commitment of the type described in this Section 3.13 is referred to herein as a “Company Contract” and each such Company Contract identified in Section 3.13(a)(i) through Section 3.13(a)(x) is identified by name and date on Schedule 3.13(a) to the Company Disclosure Statement. (b) Except as specifically contemplated by this AgreementNeither Company nor any of the Company Subsidiaries, nor to the knowledge of Company any other party to a Company Contract, has breached, violated or defaulted under, or disclosed on Schedule 5.11received notice that it has breached, violated or defaulted under, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30nor does there exist any condition under which, 1999, (ii) HI has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts passage of time or commitments required the giving of notice or both, could reasonably be expected to cause such a breach, violation or default under), any Company Contract, other than any breaches, violations or defaults which have not had, or could not reasonably be disclosed on expected to have, individually or in the Schedule 5.11aggregate, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11a Company Material Adverse Effect. (c) HI Each Company Contract is a valid, binding and enforceable obligation of Company and to the knowledge of Company, of the other party or parties thereto, in accordance with its terms, and in full force and effect, except where the failure to be valid, binding, enforceable and in full force and effect has provided not had, or could not reasonably be expected to have, individually or in the Investor with aggregate, a true Company Material Adverse Effect and correct to the extent enforcement may be limited by applicable bankruptcy, insolvency, moratorium or other laws affecting the enforcement of creditors’ rights governing or by general principles of equity. (d) An accurate and complete copy of all written contracts which are referred each Company Contract has been made available to on Schedule 5.11 which have been requested by Investors, together with all amendments, waivers or other changes theretoParent.

Appears in 1 contract

Samples: Merger Agreement (Quepasa Corp)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on the attached Schedule 5.113.12(a) or Schedule 3.15(a), HI no Entity is not a party party, or subject, to or bound by, whether written or oral, any: : (i) collective bargaining agreement relating to any completed or contract with any labor unionpending business acquisition or divestiture since January 1, whether formal or informal; 2014; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan; (iii) stock option or similar plan; (iv) contract (I) for the employment of any officer, individual employee or group other person, (II) providing for the payment of employees any cash or other person on a full-timecompensation or benefits upon the consummation of the transactions contemplated hereby, part-time or consulting basis (III) that provides severance or other benefits for any severance agreements; person; (iiiv) agreement under which any Entity created, incurred or indenture relating to the borrowing of money assumed any Indebtedness (including any conditional sales agreement, sale-leaseback or to capitalized lease) or mortgaging, pledging or otherwise granting or placing a Lien on any portion of the assets of HI; any Entity’s assets, other than as identified in Schedule 3.21; (iv) agreements with respects to the lending or investing of funds; (vvi) guaranty of any obligation for borrowed money or otherwise, Indebtedness (except pursuant to which any Entity guaranties any Indebtedness of any other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of business; Entity); (vii) lease or agreement under which HI it is lessee of, of or holds or operates, operates any personal property owned by any other party Person, for which the annual rental exceeds $50,000; ; (viii) lease or agreement under which HI it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which the annual rental exceeds $50,000; ; (ix) contract or group of related contracts with the same party for the purchase or sale by any Entity of raw materials, commodities, supplies, products or other personal property or for services, under which the furnishing or receipt undelivered balance of such products and services which either calls for performance over has a period of more than one year and involves a sum purchase price in excess of $50,000 per year; (x) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits it from freely engaging in business anywhere 100,000 in the world; or aggregate (xiii) any other agreement material to HI not than purchase orders and transportation contracts entered into in the ordinary course of business); (x) contract or group of related contracts with the same party for the sale by any Entity of products or services under which the undelivered balance of such products or services has a sales price in excess of $100,000 in the aggregate (other than sales orders and transportation contracts entered into in the ordinary course of business); (xi) any other contract, lease or agreement that cannot be canceled by any Entity without penalty or further payment or obligation and without more than thirty (30) days' notice and with remaining fixed payments in excess of $50,000 in the aggregate; (xii) agreement containing covenants that in any way purport to restrict the right of any Entity to engage in its current line of business, engage in any line of business, compete with any Person, or solicit customers; (xiii) hedging arrangement or forward, swap, derivatives or futures contract; (xiv) fuel purchasing contract; (xv) joint venture, partnership, franchise, joint marketing agreement or any other similar contract or agreement (including sharing of profits, losses, costs or liabilities by any Entity with any other Person); (xvi) material licensing agreement or other material contract or agreement with respect to Intellectual Property, including material contracts or agreements with current or former employees, consultants or contractors regarding the appropriation or non-disclosure of any Intellectual Property; (xvii) agreement under which any Entity has made loans or advances to any other Person, and such advances or loans remain outstanding, except advancement of reimbursable ordinary and necessary business expenses made to directors, officers, employees and independent contractors of any Entity in the ordinary course of business; (xviii) contract or agreement with any consultant or employee or any current or former officer, director, stockholder or Affiliate of any Entity; (xix) settlement, conciliation or similar agreement, the performance of which will involve payment after the date of this Agreement of consideration in excess of $50,000 or governmental monitoring, consent decree or reporting responsibilities; (xx) any contract or agreement, not otherwise covered by the foregoing, that is otherwise material to any Entities, taken as a whole, except for contracts or agreements entered into in the ordinary course of business; or (xxi) any amendment, supplement and modification (whether oral or written) in respect of any of the foregoing. (b) Except as specifically contemplated by this Agreement, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.113.12(b), each Entity has made available to Buyer a true, correct and complete copy of each written agreement set forth on Schedule 3.12(a) or Schedule 3.15(a), including all modifications and amendments thereto, and has made available to Buyer a true, correct and complete written summary of each oral agreement listed on Schedule 3.12(a) or Schedule 3.15(a). Except as set forth on Schedule 3.12(b), with respect to each agreement set forth on Schedule 3.12(a) or Schedule 3.15(a), such agreement: (i) is valid, binding and in full force and effect in all material respects; (ii) will remain unmodified and in full force and effect immediately after the Closing without any right on the part of any counterparty, including with the passage of time or notice, or both, to terminate, modify or impose any penalty as a result of the transactions contemplated hereby; (iii) is and will remain, including with the passage of time or notice, or both, immediately after the Closing enforceable by each Entity party thereto in accordance with its respective terms; and (iv) HI has no knowledge of Entity, nor, to the Sellers’ Knowledge, any other party, is in material breach or anticipated material breach by default under such agreement. No Entity has received any written notice (or to the Sellers' Knowledge, any other notice) of the intention of any party to terminate any contract specific agreement listed on Schedule 5.113.12(a). (c) HI has provided Schedule 3.12(c) sets forth a list of the Investor transportation contracts with the ten (10) largest customers (by consolidated revenue) of the Entities for 2019 (based upon the most recent calendar month end prior to the Closing), true, correct and complete copies of which, including all modifications and amendments thereto, have been made available to Buyer (collectively, "Customer Contracts"), and no Entity, nor, to the Sellers’ Knowledge, any other party, is in material breach or default under any such contract. Other than customary notice to an Entity that the Entity must bid to continue to provide services to a true and correct copy customer as part of all written contracts which are referred to the customer’s normal bid cycles or as set forth on Schedule 5.11 which have been requested 3.12(c), no Entity has received notice from any of the fifty (50) largest customers (by Investorsconsolidated revenue) of the Entities for 2019 (based upon the most recent calendar month prior to Closing) or their Affiliates that such customer or its Affiliates intends to terminate, together with all amendmentssubstantially modify, waivers fail to renew, or reduce volumes substantially. (d) No Entity, nor, to the Sellers’ Knowledge, any other changes theretoparty, to the twenty-five (25) largest vendor or supplier contracts (by consolidated expenses) of the Entities for 2019 (based upon the most recent calendar month prior to Closing), is in material breach or default under any such contract. No Entity has received written notice (or to Sellers' Knowledge, any other notice) from any vendor that such vendor intends to terminate, substantially modify, fail to renew or reduce volumes substantially under any such vendor contract.

Appears in 1 contract

Samples: Acquisition and Merger Agreement (Heartland Express Inc)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on Schedule 3.14(a) of the attached Company Disclosure Schedule, none of the Company, the Company Subsidiaries nor any of the entities listed on Schedule 5.11, HI 3.1(b) of the Company Disclosure Schedule is not a party to or bound by, whether written or oral, any: by any of the following: (i) collective bargaining agreement any Contract that provides for post-employment or contract with any labor unionpost-consulting liabilities or obligations, whether formal or informal; including severance pay; (ii) contract for any Contract or Company Employee Benefit Plan under which payments or obligations will be increased, accelerated or vested by the employment occurrence (whether alone or in conjunction with any other event) of any officerof the transactions contemplated by this Agreement, individual employee including the Merger, or group under which the value of employees the payments or other person obligations will be calculated on the basis of any of the transactions contemplated by this Agreement, including the Merger, whether pursuant to a full-time, part-time change in control or consulting basis or any severance agreements; otherwise; (iii) agreement or indenture any Contract currently in force relating to the borrowing disposition or acquisition of money or to placing a Lien on any assets where the fair market value of the such assets of HI; (iv) agreements with respects to the lending or investing of funds; (v) guaranty of any obligation for borrowed money or otherwiseexceeds $10,000, in each case other than endorsements made for collection; (vi) license or royalty agreements except those entered into inventory sold in the ordinary course of business; business and consistent with past practice; (viiiv) lease any Contract relating to an ownership interest in any corporation, partnership, joint venture or agreement other business enterprise or Person, excluding wholly owned Company Subsidiaries; (v) any Contract for the purchase of materials, supplies, equipment or services, under which HI is lessee of, or holds or operates, any personal property owned by any other the aggregate payments made to one party for which annual rental exceeds $50,000; (viii) lease or agreement under which HI is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which annual rental exceeds $50,000; (ix) contract or group of related contracts with parties during the same party for the purchase or sale of raw materialspast twelve (12) months exceeded, commodities, supplies, products or other personal property or for the furnishing following twelve (12) months is expected to exceed, $10,000; (vi) any Contract for the licensing of Software or receipt for the provision of services which either calls for hardware or services, in each case by the Company or any of the Company Subsidiaries; (vii) any Contract relating to the guarantee (whether absolute or contingent) by the Company or any of the Company Subsidiaries of (A) the performance over of any other Person (other than the Company or a period wholly owned Company Subsidiary) or (B) the whole or any part of more the indebtedness or liabilities of any other Person (other than one year and involves the Company or a sum wholly owned Company Subsidiary); (viii) any Contract relating to the indemnification of officers, directors, managers or agents; (ix) any Contract containing an obligation to indemnify any Person in excess of $50,000 per year; an amount that exceeds the cash consideration actually received by the Company or any Company Subsidiary pursuant to such Contract; (x) contract relating to any power of attorney authorizing the distribution, marketing incurrence of an obligation on the part of the Company or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; the Company Subsidiaries; (xi) franchise agreementsany Contract which limits or restricts (A) where the Company or any of the Company Subsidiaries may conduct business, (B) the type or lines of business (current or future) in which the Company or any of the Company Subsidiaries may engage or (C) any acquisition of assets or stock (tangible or intangible) by the Company or any of the Company Subsidiaries; (xii) contract any Contract under which prohibits it from freely engaging in business anywhere in the world; aggregate payments or receipts for the past twelve (12) months exceeded, or for the following twelve (12) months is expected to exceed, $10,000; (xiii) any other agreement material Contract for the borrowing or lending of money, or the availability of credit (except credit extended by the Company or any of the Company Subsidiaries to HI not entered into customers in the ordinary course of businessbusiness and consistent with past practice); (xiv) any Contract relating to any hedging, option, derivative or other similar transaction and any foreign exchange position or contract for the exchange of currency; (xv) any collective bargaining agreements; or (xvi) any Contract relating to the employment of individuals. Each Contract of the type described in this Section 3.14(a) and in existence as of the date hereof is referred to herein as a “Company Contract”. (b) Except as specifically contemplated by this Agreement, or disclosed on Schedule 5.11, An accurate and complete copy of each Company Contract (iincluding all amendments thereto) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI has performed in all material respects all of the obligations required made available to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11Parent. (c) HI Neither the Company nor any of the Company Subsidiaries, nor, to the knowledge of the Company, any other party to a Company Contract, is in breach, violation or default under, or has provided received written notice that it has breached, violated or defaulted under (nor, to the Investor knowledge of the Company, does there exist any condition under which, with the passage of time or the giving of notice or both, would reasonably be expected to cause such a true breach, violation or default under), any Company Contract. (d) Each Company Contract is a valid, binding and correct copy enforceable obligation of all written contracts which are referred the Company and any applicable Company Subsidiary and, to on Schedule 5.11 which have been requested the knowledge of the Company, of the other party or parties thereto, in accordance with its terms and is in full force and effect, in each case except to the extent enforcement may be limited by Investorsapplicable bankruptcy, together with all amendmentsinsolvency, waivers reorganization, moratorium or other changes theretolaws affecting creditors’ rights generally or by general equitable principles or by principles of good faith and fair dealing (regardless of whether enforcement is sought in equity or at law).

Appears in 1 contract

Samples: Merger Agreement (Accelrys, Inc.)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on the attached Schedule 5.11Contracts Schedule, HI as of the date hereof, neither the Company nor any of its Subsidiaries is not a party to or bound by, whether written or oral, any: : (i) collective bargaining agreement or contract with any labor union, whether formal or informal; agreement; (ii) contract Contract for the employment of any officer, individual employee or group of employees or other person on a full-time, part-time or consulting basis or any severance agreements; providing for base compensation in excess of two hundred thousand dollars ($200,000) per annum; (iii) agreement or indenture Contract relating to the borrowing incurrence, assumption or guarantee, whether directly or indirectly, of money any Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of HI; the Company or any of its Subsidiaries including indentures, guarantees, loan or credit agreements, sale and leaseback agreements, purchase money obligations incurred in connection with the acquisition of property, pledge agreements, security agreements, or conditional sale or title retention agreements; (iv) agreements with respects to the lending or investing of funds; (v) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; material guaranty; (vi) license or royalty agreements except those entered into in the ordinary course of business; (viiv) lease or agreement under which HI it is lessee of, or holds or operates, operates any personal property owned by any other party party, for which the annual rental exceeds twenty-five thousand dollars ($50,000; 25,000); (viiivi) lease or agreement under which HI it is lessor of or permits any third third-party to hold or operate any property, real or personal, owned or controlled by it for which the annual rental exceeds twenty-five thousand dollars ($50,000; 25,000); (ixvii) contract other than purchase orders entered into in the Ordinary Course of Business, Contracts or group of related contracts Contracts with any supplier required to be listed on the same party for Customers and Suppliers Schedule; (viii) other than purchase orders entered into in the purchase Ordinary Course of Business, Contract or sale group of raw materials, commodities, supplies, products related Contracts with any customer required to be listed on the Customers and Suppliers Schedule; (ix) Contracts which purport to or other personal property that prohibit the Company or for the furnishing or receipt of services which either calls for performance over a period of more than one year and involves a sum in excess of $50,000 per year; (x) contract relating to the distribution, marketing or sales any of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits it Subsidiaries from freely engaging in business (including any contract with a non-competition provision with respect to the company or any of its Subsidiaries or any product produced or sold by the Company or any of its Subsidiaries) anywhere in the world; world or any Contract containing covenants of the Company not to solicit or hire any person with respect to employment; (x) Contract containing a minimum purchase requirement by the Company or any of its Subsidiaries to purchase during the twelve (12) month period immediately following December 31, 2020, in the aggregate, a minimum of one hundred thousand dollars ($100,000) or more of goods or services on an annual basis; (xi) Contract containing a minimum supply commitment by the Company or any of its Subsidiaries to supply during the twelve (12) month period immediately following December 31, 2020, in the aggregate, a minimum of one hundred thousand dollars ($100,000) or more of goods or services on an annual basis; (A) Contracts providing for the grant of any license, right, permission, consent or non assertion relating to any Intellectual Property by (y) the Company or any of its Subsidiaries to a third party or (z) a third party to the Company or any of its Subsidiaries, and (B) Contracts affecting the Company's or any of its Subsidiaries' ability to use or disclose any material Intellectual Property, in the case of each of the foregoing clauses (A) and (B), other than (1) licenses for commercially available, off the shelf software used by the Company or any of its Subsidiaries, (2) Contracts that arise as a matter of law by implication as a result of sales of products and services by the Company or its Subsidiaries, or (3) Contracts entered into by the Company or any of its Subsidiaries with its customers in the Ordinary Course of Business, under which the Company or its Subsidiaries grants to a customer a non-exclusive license of Company Intellectual Property; (xiii) Contracts providing for the authorship, invention, creation, conception or other development of any material Intellectual Property by (A) the Company or any of its Subsidiaries for any third party or (B) a third party for the Company or any of its Subsidiaries, in the case of (B), other agreement than Contracts with employees whereby employees are obligated to assign all intellectual property rights to the Company or one of its Subsidiaries; (xiv) Contracts providing for the assignment or transfer of any ownership interest in material Intellectual Property by (A) the Company or any of its Subsidiaries to HI not a third party or (B) a third party to the Company or any of its Subsidiaries, in the case of (B) other than Contracts with Persons whereby such Persons are obligated to assign all intellectual property rights to the Company or one of its Subsidiaries, and in the case of (A), Contracts entered into in the ordinary course Ordinary Course of Business with customers; (xv) Contract containing any future capital expenditure obligation(s) of the Company or any of its Subsidiaries in excess of two hundred fifty thousand dollars ($250,000); (xvi) each partnership, strategic alliance or joint venture Contract to which the Company or any of its Subsidiaries is a party; (xvii) Contract with a "most favored nation" or similar provision; (xviii) Contracts relating to the acquisition or disposition (whether by merger, sale of units, sale of all (or substantially all) assets or otherwise) of any Person or line of business, or other substantial amount of assets (other than inventory and raw materials, or other assets acquired or disposed of in the Ordinary Course of Business), or the future acquisition or disposition (whether by merger, sale of units, sale of all (or substantially all) assets or otherwise) of any Person or line of business, or other substantial amount of assets (other than inventory and raw materials, or other assets acquired or disposed of in the Ordinary Course of Business); (xix) Contract that requires the Company or any of its Subsidiaries to indemnify any Person (excluding indemnities contained in agreements for the purchase, sale or license of products or services entered into in the Ordinary Course of Business); and (xx) Contract under which the Company or its Subsidiaries has made advances or loans to any other Person. (b) As of the date hereof, each of the Contracts listed or required to be listed on the Contracts Schedule is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the Knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors' rights or to general principles of equity. Except as specifically contemplated by this Agreementset forth on the Contracts Schedule, as of the date hereof, neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Contract listed on the Contracts Schedule, and, to the Knowledge of the Company, the other party to each of the Contracts listed on the Contracts Schedule is not in material default thereunder. Except as set forth on the Contracts Schedule, as of the date hereof, no event has occurred that with the lapse of time or the giving of notice or both would constitute a material breach or default on the part of the Company, or disclosed any Subsidiary of the Company or, to the Knowledge of the Company, any other party under any Contract listed on Schedule 5.11the Contracts Schedule. To the Knowledge of the Company, as of the date hereof, (i) no contract party to any Contract listed on the Contracts Schedule has exercised or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30given written notice that it will exercise any termination rights with respect thereto, 1999, and (ii) HI no party has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge given written notice of any material breach or anticipated material breach by any party dispute with respect to any contract specific Contract listed on Schedule 5.11. (c) HI the Contracts Schedule. The Company has provided made available to the Investor with a Purchaser true and correct copy copies of all written contracts which are referred to each Contract listed on Schedule 5.11 which have been requested by Investorsthe Contracts Schedule, together with all amendments, waivers modifications or other changes supplements thereto.

Appears in 1 contract

Samples: Unit Purchase Agreement (Arcosa, Inc.)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except Other than the Transaction Agreements or as set forth on in schedule 3.22, neither the attached Schedule 5.11, HI Company nor the Parent is not a party to or bound byby any of the following agreements, whether such agreements are written or oral, any: : (i) collective bargaining agreement or contract with any labor union, whether formal or informal; (ii) contract for the employment of any officer, individual employee or group of employees employee, or other person on a full-time, part-time or consulting basis or any severance agreements; , other than at the will of the employer; (iiiii) agreement promissory note, agreement, or promise to pay, or indenture relating to the borrowing of money or to mortgaging, pledging, or otherwise placing a Lien on lien, security interest, or other charge or encumbrance on, any of the assets of HI; its assets, other than Permitted Liens; (iviii) agreements with respects respect to the lending or investing of funds; (v) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of business; business and consistent with past practice regarding cash management; (viiiv) license or royalty agreements, other than off-the-shelf software and agreements with customers in the ordinary course of business and consistent with past practice; (v) guaranty of indebtedness or liability of any other person or entity; (vi) lease or agreement under which HI it is lessee of, or holds or operates, any personal property property, real or persona, owned by any other party for which that involves annual rental exceeds payments of more than $50,000; 5,000 ; (viiivii) lease or agreement under which HI it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which annual rental exceeds $50,000; it; (ixviii) contract or group of related contracts with the same party for the purchase or sale by it of raw materials, commodities, supplies, products products, or other personal property or for the furnishing or receipt of services which either calls for performance over a period of more than one year and that involves a sum in excess of $50,000 per year; 5,000; (ix) contract that prohibits or purports to prohibit it or any of its affiliates from freely engaging in business anywhere in the world; (x) contract relating to the distribution, marketing marketing, or sales sale of its products or services (including contracts to provide advertising allowances or promotional services) involving more , other than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits it from freely engaging in business anywhere in the world; or (xiii) any other agreement material to HI not entered into in the ordinary course of business.business and consistent with past practice; (bxi) Except as specifically contemplated by this Agreementwarranty agreement with respect to products or services sold or licensed, other than in the ordinary course of business and consistent with past practice; (xii) franchise agreement and license agreement, other than in the ordinary course of business and consistent with past practice; (xiii) agreement, contract, or disclosed on Schedule 5.11understanding, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached series of related agreements, contracts, or canceled by the other party since June 30understandings, 1999, (ii) HI has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, which it engages independent contractors and (iv) HI has no knowledge involves a sum in excess of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11.$5,000; (cxiv) HI has provided agreement to register securities under the Investor with a true and correct copy of all written contracts which are referred to on Schedule 5.11 which have been requested by Investors, together with all amendments, waivers or other changes thereto.Securities Act; or

Appears in 1 contract

Samples: Securities Purchase Agreement (Comcam International Inc)

Contracts and Commitments. (a) Except as specifically contemplated by The Disclosure Schedule, under the caption referencing this Agreement and except as set forth on Section 3.13, lists the attached Schedule 5.11following agreements, HI whether oral or written, to which the Company is not a party to or bound byand, whether written or oral, any: which are currently in effect (the "Contracts"): (i) collective bargaining agreement or contract with any labor union; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described under the caption referencing Section 3.19 hereof in the Disclosure Schedule; (iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal; , other than as described under the caption referencing Section 3.19 hereof in the Disclosure Schedule; (iiiv) stock purchase or stock option plan; (v) contract for the employment of any officer, individual employee or group of employees or other person on a full-time, part-time or consulting basis or relating to severance pay for any severance agreements; such person; (iiivi) standard form of confidentiality or nondisclosure agreement; (vii) contract, agreement or understanding relating to the voting of any of the Company Capital Stock or the election of directors of the Company to which the Company is a party; (viii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien lien (other than a purchase money security lien) on any of the assets of HI; the Company; (ivix) agreements with respects to the lending or investing of funds; (v) guaranty guarantee of any material obligation for borrowed money or otherwise, other than endorsements made for collection; ; (vi) license or royalty agreements except those entered into in the ordinary course of business; (viix) lease or agreement under which HI it is lessee of, or holds or operatesoperates any property, any personal property real or personal, owned by any other party for which the annual rental exceeds $50,000; ; (viiixi) lease or agreement under which HI it is lessor of of, or permits any third party to hold or operate operate, any property, real or personal, owned or controlled by it personal for which the annual rental exceeds $50,000; ; (ixxii) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $100,000; (xiii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $100,000; (xiv) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance services) continuing over a period of more than one year six months from the date or dates thereof, not terminable by it on 30 days' or less notice without penalty and involves a sum in excess of $50,000 per year; (x) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; 50,000; (xi) franchise agreements, (xiixv) contract which prohibits it the Company from freely engaging in business anywhere in the world; ; (xvi) contract for the distribution of any of the products of the Company (including any distributor, sales and original equipment manufacturer contract); (xvii) license agreement or (xiii) any other agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed under the caption referencing Section 3.14 hereof in the Disclosure Schedule; (xviii) contract or commitment for capital expenditures in excess of $50,000 individually; (xix) agreement for the sale of any capital asset with a net book value in excess of $20,000; (xx) all contracts terminable by the other party thereto upon a change of control of the Company or upon the failure of the Company to satisfy financial or performance criteria specified in such contract as provided therein; or (xxi) other material to HI agreement not entered into in the ordinary course of business. (b) Except as specifically contemplated by this Agreement, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI The Company has performed in all material respects all of the obligations required to be performed by HI it in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, Contracts and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no such Contract. The Company does not have a present expectation or intention of not fully performing any material obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI Contract. The Company has no knowledge Knowledge of any material breach or anticipated material breach by any other party to any contract specific on Schedule 5.11Contract. (c) HI Prior to the date of Closing, Parent has provided the Investor been or will be supplied with or had or will have made available to it a true and correct complete copy of all each written contracts which are referred to on Schedule 5.11 which have been requested by InvestorsContract, and a written description of each oral Contract, together with all amendments, waivers or other changes thereto.

Appears in 1 contract

Samples: Merger Agreement (Great Plains Software Inc)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on Schedule 2.11(a) or Schedule 2.14(a), Neither the attached Schedule 5.11Company nor any of its Subsidiaries is a party, HI is not a party or subject, to or bound by, whether written or oral, any: : (i) collective bargaining agreement relating to any completed or contract with any labor unionpending business acquisition or divestiture since January 1, whether formal or informal; 2014; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan; (iii) stock option or similar plan; (iv) contract (A) for the employment of any officer, individual employee or group of employees employee, or other person on a full-timeperson, part-time (B) providing for the payment of any cash or consulting basis other compensation or benefits upon the consummation of the transactions contemplated hereby, or (C) that provides severance or other benefits for any person; (v) agreement under which the Company or any severance agreements; of its Subsidiaries created, incurred or assumed any Indebtedness (iiiincluding any conditional sales agreement, sale-leaseback, or capitalized lease) agreement or indenture relating to the borrowing of money mortgaging, pledging or to otherwise granting or placing a Lien on any portion of any of the assets Company’s or any of HI; its Subsidiaries' assets, other than as identified in Schedule 2.20; (iv) agreements with respects to the lending or investing of funds; (vvi) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of business; Indebtedness; (vii) lease or agreement under which HI it is lessee of, of or holds or operates, operates any personal property owned by any other party Person, for which the annual rental exceeds $50,000; ; (viii) lease or agreement under which HI it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which the annual rental exceeds $50,000; ; (ix) contract or group of related contracts with the same party for the purchase by the Company or sale any of raw materials, commodities, supplies, its Subsidiaries of products or other personal property or for services, under which the furnishing or receipt undelivered balance of such products and services which either calls for performance over has a period of more than one year and involves a sum purchase price in excess of $50,000 per year; (x) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits it from freely engaging in business anywhere in the world; or aggregate (xiii) any other agreement material to HI not than purchase orders and transportation contracts entered into in the ordinary course of business); (x) contract or group of related contracts with the same party for the sale by the Company or any of its Subsidiaries of products or services under which the undelivered balance of such products or services has a sales price in excess of $50,000 in the aggregate (other than sales orders and transportation contracts entered into in the ordinary course of business); (xi) any other contract, lease, or agreement, other than contracts for the purchase of tractors or trailers disclosed on Schedule 2.09(e), that cannot be canceled by the Company or any of its Subsidiaries without penalty or further payment or obligation and without more than thirty (30) days’ notice and with remaining fixed payments in excess of $50,000 under any such contract; (xii) agreement containing covenants that in any way purport to restrict the right of the Company to engage in its current line of business, engage in any line of business, compete with any Person, or solicit customers; (xiii) hedging arrangement or forward, swap, derivatives or futures contract; (xiv) joint venture, partnership, franchise, joint marketing agreement, or any other similar contract or agreement (including sharing of profits, losses, costs or liabilities by the Company or any Subsidiary thereof with any other Person); (xv) material licensing agreement or other material contract or agreement with respect to Intellectual Property, including material contracts or agreements with current or former employees, consultants, or contractors regarding the appropriation or non-disclosure of any Intellectual Property, other than contracts with less than $50,000 fixed payments remaining; (xvi) agreement under which the Company or any Subsidiary thereof has made loans or advances to any other Person, and such advances or loans remain outstanding in an amount greater than $15,000, except advancement of reimbursable ordinary and necessary business expenses made to directors, officers, employees, and independent contractors (including but not limited to advances to owner-operators for vehicle repairs) of the Company or any Subsidiary thereof in the ordinary course of business; (xvii) contract or agreement with any consultant or employee or any current or former officer, director, shareholder, or Affiliate of the Company or any Subsidiary thereof, other than at-will arrangements or agreements or ordinary course agreements terminable on less than thirty (30) days’ notice by the Company without accelerated payment or any other penalty; (xviii) settlement, conciliation or similar agreement, the performance of which will involve payment after the date of this Agreement of consideration in excess of $50,000 or governmental monitoring, consent decree or reporting responsibilities; (xix) any contract or agreement, not otherwise covered by the foregoing, that is otherwise material to the Company or its Subsidiaries, taken as a whole, except for contracts or agreements entered into in the ordinary course of business; or (xx) any amendment, supplement, or modification (whether oral or written) in respect of any of the foregoing. (b) Except as specifically contemplated by this AgreementThe Company has made available to Buyer a true, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11correct, and is not in receipt complete copy of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract each written agreement set forth on Schedule 5.112.11(a) or Schedule 2.14(a), including all modifications and amendments thereto. With respect to each agreement set forth on Schedule 2.11(a) or Schedule 2.14(a), except as set forth on Schedule 2.11(a) or Schedule 2.14(a), such agreement: (i) is valid, binding, and in full force and effect in all material respects; (ii) will remain unmodified and in full force and effect immediately after the Closing without any right on the part of any counterparty, including with the passage of time or notice, or both, to terminate, modify or impose any penalty as a result of the transactions contemplated hereby; (iii) is and will remain, including with the passage of time or notice, or both, immediately after the Closing enforceable by the Company or its Subsidiaries, as applicable, in accordance with its respective terms; and (iv) HI has no knowledge neither the Company nor any of its Subsidiaries, nor, to Seller’s Knowledge, any other party, is in material breach or anticipated material breach by default under such agreement. Neither the Company nor any of its Subsidiaries has received any written notice (or to Seller’s Knowledge, any other notice) of the intention of any party to terminate any contract specific agreement listed on Schedule 5.112.11(a). There are no oral agreements with respect to the subject matter of Schedule 2.11(a) or Schedule 2.14(a) that, individually or in the aggregate, are material to the Company or any of its Subsidiaries. (c) HI has provided Schedule 2.11(c) sets forth a list of the Investor transportation contracts with a true the ten (10) largest non-Affiliated customers (by consolidated revenue) of the Company and correct copy its Subsidiaries for the first five (5) months of 2017, true, correct, and complete copies of which, including all written contracts which are referred to on Schedule 5.11 which modifications and amendments thereto, have been requested made available to Buyer, with the exception of pricing and certain other competitively sensitive data that has been redacted (collectively, “Customer Contracts”). Neither the Company nor any of its Subsidiaries, nor, to Seller’s Knowledge, any other party, is in material breach or default under any such Customer Contract. Other than customary notice to the Company or any of its Subsidiaries that the Company or such Subsidiary must bid to continue to provide services to a customer as part of the customer’s normal bid cycles, neither the Company nor any of its Subsidiaries has received, written notice (or, to Seller’s Knowledge, any other notice) from any customer that such customer intends to terminate, substantially modify, fail to renew, or reduce volumes substantially under, any such Customer Contract. (d) Schedule 2.11(d) sets forth a list of the contracts with the ten (10) largest vendors or suppliers (by Investorsconsolidated expenses) of the Company and its Subsidiaries for the first five (5) months of 2017, together true, correct, and complete copies of which, including all modifications and amendments thereto, have been made available to Buyer, with all amendmentsthe exception of pricing and certain other competitively sensitive data that has been redacted (collectively, waivers “Vendor Contracts”). Neither the Company nor any of its Subsidiaries, nor, to Seller’s Knowledge, any other party, is in material breach or default under any such Vendor Contract. Neither the Company nor any of its Subsidiaries has received, written notice (or, to Seller’s Knowledge, any other changes theretonotice) from any vendor that such vendor intends to terminate, substantially modify, fail to renew, or reduce volumes substantially under any such Vendor Contract.

Appears in 1 contract

Samples: Stock Purchase Agreement (Heartland Express Inc)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on Schedule 4.12, and except for agreements entered into by the attached Schedule 5.11Company after the date hereof in accordance with Section 6.01, HI the Company is not currently a party to or bound by, whether written or oral, any: (i) collective bargaining agreement or contract with any labor union, whether formal or informal; (ii) written bonus, pension, employee profit sharing, retirement or other form of deferred compensation plan; (iii) stock purchase, stock option or similar plan; (iv) contract for the employment of any officer, individual employee or group of employees or other person on a full-time, part-time or consulting basis or any severance agreementsproviding for base salary compensation in excess of $200,000 per annum; (iiiv) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien on any material portion of the assets of HIthe Company; (iv) agreements with respects to the lending or investing of funds; (vvi) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of businessmaterial guaranty; (vii) lease or agreement under which HI it is lessee of, or holds or operates, operates any personal property owned by any other party party, for which the annual rental exceeds $50,000250,000; (viii) lease or agreement under which HI it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which the annual rental exceeds $50,000250,000; (ix) contract or group of related contracts with the same party for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls provide for performance over a period of more than one year and involves a sum annual payments by the Company in excess of $50,000 per year300,000 during the trailing twelve-month period ending on the date of the Latest Balance Sheet; (x) contract agreements relating to any completed material business acquisition by the distribution, marketing or sales of its products or services Company within the last three (including contracts to provide advertising allowances or promotional services3) involving more than $50,000 per yearyears; (xi) franchise agreements, contract or group of related contracts with a client or customer that provides annual net revenues (defined solely for this clause (xi) as the gross merchant discount rate less interchange) (based on the trailing twelve-month period ending on the date of the Latest Balance Sheet) to the Company in excess of $900,000; (xii) material license or royalty agreement relating to the use of any third party intellectual property other than commercially available off-the-shelf software licenses; (xiii) contract which prohibits it the Company from freely engaging in business anywhere in the world; or (xiiixiv) any other agreement material relating to HI not entered into the provision of merchant processing or settlement services involving consideration from the Company in excess of $300,000 for the ordinary course 12- month period ending on the date of businessthe Latest Balance Sheet. (b) Except as specifically contemplated by this Agreement, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.114.12, the Purchaser either has been supplied with, or has been given access to, a true, correct and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11. (c) HI has provided the Investor with a true and correct complete copy of all written contracts which are referred to on Schedule 5.11 4.12. There are no non-written contracts which, but for the fact that they are non-written, would otherwise be contained on the Schedule 4.12. There are no non-written amendments or modifications to any contract contained on Schedule 4.12. (c) Each contract listed on Schedule 4.12 is in full force and effect, is a legal, valid and binding agreement of the Company, and is enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy laws, other similar laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies. The Company is not in material default under any contract listed on Schedule 4.12. (d) Except as set forth on Schedule 4.12, as of November 1, 2013, neither the Company nor, to the Company’s Knowledge, any party to any Merchant Agreement, is in default in any material respect of any Merchant Agreement except for those parties to Merchant Agreements (i) for which have a reserve account has been requested established by InvestorsCompany or its processor; or (ii) an ACH reject for the merchant’s settlement has occurred; (e) Except as set forth on Schedule 4.12, together as of the date hereof, there are no suits or proceedings pending, or, to the Company’s Knowledge, threatened against the Company, at law or in equity, before any Governmental Entity related to any Merchant Agreement. As of the date of this Agreement, to the Knowledge of the Company, no Merchant has (i) informed the Company in writing that it intends, after the date of this Agreement, to cease or materially alter, in a manner adverse to the Company, such Merchant’s relationship with all amendmentsthe Company or (ii) threatened in writing to terminate any Merchant Agreement; (f) Except as set forth on Schedule 4.12(f), waivers to the Company’s Knowledge, no Merchant is, as of the date hereof, the subject of any bankruptcy or other changes theretoinsolvency proceeding before any Governmental Entity; (g) Except as set forth on Schedule 4.12, to the Knowledge of the Company, there exists no outstanding or threatened fine or penalty to Company from a Card Association arising out of or relating to a Merchant Agreement; and (h) Neither the Company nor, to the Company’s Knowledge, any party to any Reseller Agreement, is in default in any material respect of any Reseller Agreement.

Appears in 1 contract

Samples: Merger Agreement (Global Payments Inc)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on the attached in Schedule 5.11, HI 3.13: (a Seller is not a party to any contract, commitment or bound byarrangement of the type described below which would be binding on Purchaser with respect to any employees of the Mounds Facility after the Closing Date, or would otherwise be applicable to or binding upon Purchaser for any reason whether written now or oral, any: at any time after the Closing Date: (i) collective bargaining agreement bonus, pension, profit sharing, retirement or contract with any labor uniondeferred compensation plan or stock purchase, stock option, hospitalization insurance or similar plan or practice, whether formal or informal; , or severance agreements or arrangements; (ii) contract with any labor union or contract for the employment of any officer, individual employee or group of employees or other person Person on a full-time, part-time or consulting basis or any severance agreements; basis; (iii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien lien on any of the assets of HI; Purchased Assets; (iv) agreements with respects to the lending or investing of funds; (v) guaranty guarantee of any obligation for borrowed money or otherwise, other than endorsements made for collection; collection in the ordinary course of business; (v) agreement or commitment with respect to the lending or investing of funds to or in other persons or entities; (vi) license or royalty agreements except those entered into in the ordinary course of business; agreement; (vii) lease or agreement under which HI it is lessee of, of or holds or operates, operates any personal property owned by any other party for which the aggregate annual rental payments to any one Person and its affiliates exceeds $50,000; 25,000 (except to the extent any of the foregoing constitutes a Contract Right to be assumed by Purchaser hereunder); (viii) lease or agreement under which HI it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which the aggregate annual rental exceeds $50,000; 25,000 (except to the extent any of the foregoing constitutes a Contract Right to be assumed by Purchaser hereunder); (ix) contract or group of related contracts with the same party for the purchase or sale of raw materials, commodities, supplies, products or services under which the undelivered balance of such products and services has a selling price in excess of $25,000 (except to the extent any of the foregoing constitutes a Contract Right to be assumed by Purchaser hereunder); (x) other personal property contract or for group of related contracts with the furnishing or receipt of services which either calls for performance same party continuing over a period of more than one year and involves a sum in excess of $50,000 per year; six months from the date or dates thereof, not terminable by it on thirty (x30) contract relating to the distribution, marketing days' or sales of its products less notice without penalties or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; 25,000 (except to the extent any of the foregoing constitutes a Contract Right to be assumed by Purchaser hereunder); (xi) franchise agreements, (xii) contract which prohibits it from freely engaging in business anywhere in the world; or (xiii) any other agreement material to HI not entered into in the ordinary course of business. (b) Except as specifically contemplated by this Agreement, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11. (c) HI has provided the Investor with a true and correct copy of all written contracts which are referred to on Schedule 5.11 which have been requested by Investors, together with all amendments, waivers or other changes thereto.;

Appears in 1 contract

Samples: Asset Purchase Agreement (Oil Dri Corporation of America)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement Section 4.8(a) of the Disclosure Schedules sets forth a true and except as set forth on complete list of the attached Schedule 5.11, HI following Contracts to which the Company is not a party to or bound by, whether written or oral, any: party: (i) any collective bargaining bargaining, works council, shop, enterprise or recognition agreement or contract other Contract with any labor union, whether formal or informal; Union; (ii) contract for any employment agreement with any employee of the employment of any officer, individual employee or group of employees or other person on a full-time, part-time or consulting basis or any severance agreements; Company; (iii) agreement or indenture any Contract relating to (A) Indebtedness, (B) the borrowing PPP Loan or (C) the mortgaging, pledging or otherwise placing of money or to placing a Lien an Encumbrance (other than Permitted Encumbrances) on any of the assets of HI; Company’s assets; (iv) agreements with respects to the lending or investing of funds; (v) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of business; (vii) lease or agreement under which HI it is the lessee of, or holds or operates, operates any personal property owned by any other party for which annual rental exceeds $50,000; (viii) party, or lease or agreement under which HI it is the lessor of or permits any third party to hold or operate any Company property, real or personal; (v) any Contract, owned or controlled by it for which annual rental exceeds $50,000; other than purchase orders entered into in the Ordinary Course of Business, (ixA) contract or group of related contracts with the same party twenty-five (25) customers and twenty-five (25) suppliers/vendors of the Company that have purchased from or sold to, as applicable, the Company the most products or services (based upon consideration received/paid by the Company) since the Look-Back Date, (B) for the purchase or sale of raw materials, commodities, supplies, products merchandise, equipment, parts or other personal property or for the furnishing services with other customers or receipt of services which either calls for performance over a period of more than one year and involves a sum suppliers requiring aggregate future payments in excess of $50,000 per year; 10,000, or (C) any guaranty of any obligation described in clauses (A) and (B); (vi) any Contract for capital expenditures or the acquisition or construction of fixed assets for the benefit and use of the Company, the performance of which involves unpaid commitments or liabilities in excess of $10,000; (vii) any Contract (A) for the acquisition (by merger or otherwise) of any business or securities of another Person or all or substantially all of the of the assets of another Person or (B) for the disposition of the assets or of any business enterprise of the Company other than dispositions of inventory and products of the Company in the Ordinary Course of Business, in each case that is the source of any surviving rights, obligations or other provisions; (viii) any license, sublicense, consent to use agreement, settlement, coexistence agreement, covenants not to xxx, permission or other Contract pursuant to which the Company grants rights to any third party or receives a grant of rights from any third party to use any Intellectual Property material to the operation of the business of the Company, other than agreements relating to off-the-shelf commercially available software available for an annual or one time license fee of less than $10,000 in the aggregate; (ix) any Contract that requires the Company to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions; (x) contract relating to the distributionany broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; Contract; (xi) franchise agreements, any Contract with any Governmental Authority; (xii) contract which prohibits it from freely engaging any Contract that limits the ability of the Company to compete in any line of business anywhere or with any Person or in the world; any geographic area or during any period of time; (xiii) any Contract that provides for any joint venture, partnership or similar arrangement by the Company; and (xiv) any other agreement material Contract involving aggregate consideration in excess of $10,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice. Each Contract of the type described in clauses (i) through (xiv) above (and each Real Property Lease required to HI not entered into be listed in Section 4.11(a) of the ordinary course of businessDisclosure Schedules) is referred to herein as a “Material Contract”. (b) Except as specifically contemplated by this Agreement, The Company has made available to Parent a true and complete copy (including all amendments or disclosed on Schedule 5.11, modifications thereto) of each Material Contract (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by other than purchase orders entered into in the other party since June 30, 1999, (ii) HI has performed in all material respects all Ordinary Course of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11Business). (c) HI With respect to each Material Contract, neither the Company nor, to the Knowledge of the Company, any other party thereto is (with or without the lapse of time or the giving of notice, or both) in material breach or default under such Material Contract, or has provided or received any notice of any written intention (or to the Investor Company’s Knowledge, verbal notice) to terminate such Material Contract. (d) Except as set forth on Section 4.8(d) of the Disclosure Schedules, the execution, delivery and performance of this Agreement and the Company Documents by the Company and the consummation of the transactions contemplated hereby or thereby do not and will not conflict with or result in any material breach of, constitute a true and correct copy material default or an event that, with or without notice or lapse of all written contracts time or both, would constitute a material default under, or result in the acceleration of or create in any party the right to accelerate, terminate, modify or cancel any, or require any consent, notice or other material action by any Person under, the provisions of any Material Contract. No event has occurred, is pending or, to the Company’s Knowledge, threatened in writing, which are referred after the giving of notice, lapse of time or otherwise would constitute a material breach or default by the Company under any Material Contract or, to on Schedule 5.11 which have been requested by Investorsthe Company’s Knowledge, together with all amendments, waivers any other party to any Material Contract or would result in a termination thereof or cause or permit the acceleration or other changes of any material right or obligation or the loss of any material benefit thereunder. (e) Each Material Contract is in full force and effect and constitutes a legal, valid and binding obligation of the Company, and, to the Company’s Knowledge, constitutes a valid and binding obligation of the other parties thereto, in each case, except as such enforceability may be limited by the Equitable Exceptions.

Appears in 1 contract

Samples: Merger Agreement (LIVE VENTURES Inc)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on the attached Contracts Schedule 5.11- Schedule 4.09(a), HI neither the Company nor any Subsidiary is not a party to or bound by, whether written or oral, any: (i) collective bargaining agreement or contract with any labor union, whether formal or informal; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 4.13 or the schedules relating thereto; (iii) stock purchase, stock option or similar plan; (iv) contract for the employment of any officer, individual employee or group of employees or other person on a full-time, part-time or consulting basis or any severance agreementsbasis; (iiiv) agreement agreement, document, instrument or indenture evidencing or relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien lien on any material portion of the Company's or any Subsidiary's assets of HI(including any such document evidencing or relating to Funded Indebtedness); (iv) agreements with respects to the lending or investing of funds; (vvi) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of businessmaterial guaranty; (vii) lease or agreement under which HI it is lessee of, or holds or operates, operates any personal property owned by any other party party, for which the annual rental exceeds $50,00025,000; (viii) lease or agreement under which HI it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which the annual rental exceeds $50,00025,000; (ix) contract or group of related contracts with the same party for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for services, under which the furnishing or receipt undelivered balance of such products and services which either calls for performance over has a period of more than one year and involves a sum selling price in excess of $50,000 per year25,000; (x) contract relating to or group of related contracts with the distribution, marketing or sales same party for the sale of its products or services (including contracts to provide advertising allowances under which the undelivered balance of such products or promotional services) involving more than services has a sales price in excess of $50,000 per year25,000; (xi) franchise agreements, (xii) noncompetition or other contract which prohibits it or restricts the Company or any Subsidiary from freely engaging in operations or business anywhere in the world; (xii) written arrangement concerning a partnership or joint venture; (xiii) written or other arrangement concerning confidentiality; (xiv) written or other arrangement involving any of the Shareholders or the Optionholders and their respective Affiliates; (xv) written arrangement under which the consequences of a default or termination could have a Material Adverse Effect; (xvi) license, sublicense, agreement or permission to use any patent, patent application, trademark, service xxxx, trade dress, trade name or corporate name or registration or application for registration thereof, or any other item of material Intellectual Property owned by any third party and used by any of the Company or its Subsidiaries; or (xvii) other material written arrangement (or group of related written arrangements) or any written agreement material to HI not entered into in the ordinary course of business. (b) Except as specifically contemplated by this Agreement, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 Buyer has been breached or canceled by the other party since June 30, 1999, (ii) HI has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11. (c) HI has provided the Investor supplied with a true and correct copy of all written contracts which are referred to on the Contracts Schedule 5.11 which have been requested by Investors- Schedule 4.09(a), together with all amendments, waivers or other changes thereto. (c) With respect to each agreement, contract, plan, document, instrument, indenture or arrangement so listed on the attached Contracts Schedule - Schedule 4.09 (a) (collectively, the "Material Contracts"): (i) such Material Contract is legal, valid, binding and enforceable and in full force and effect against the Company or the Subsidiary that is party thereto and, to the Company's knowledge, against each Person (other than the Company or any of its Subsidiaries) that is party thereto; (ii) subject to the Company's obtaining the consents set forth on the attached Third-Party Consents Schedule - Schedule 4.09(c), such Material Contract will continue to be legal, valid, binding, and enforceable against the Company or the Subsidiary that is party thereto and, to the Company's knowledge, against each Person (other than the Company or any of its Subsidiaries) that is party thereto and in full force and effect on identical terms following the Closing; (iii) subject to the Company's obtaining the consents indicated on the Third Party Consents Schedule - Schedule 4.09(c), the consummation of the transactions contemplated by this Agreement will not result in any breach or violation of such Material Contract; and (iv) the Company is not in breach of or default under such contract, and to the Company's knowledge, no event has occurred which, with notice or lapse of time would constitute a breach of or default under or permit termination, modification, or acceleration under, such contract. (d) None of the Company and its Subsidiaries is a party to any oral contract, agreement, or other arrangement which, if reduced to written form, would be required to be listed in the Contracts Schedule - Schedule 4.09(c) under the terms of this Section 4.09. (e) To the Company's knowledge, since December 31, 1996, there is no unresolved threat by (i) any supplier or vendor of any of the Company and its Subsidiaries that such supplier or vendor will stop, or materially decrease the rate of, supplying materials, products, or services to any of them or (ii) by any customer of any of the Company and its Subsidiaries that such customer will stop or materially decrease the rate of buying material or products from any of them.

Appears in 1 contract

Samples: Stock Purchase Agreement (Desa Holdings Corp)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on the attached Schedule 5.11Contracts Schedule, HI is the Companies are not a party to or bound by, whether written or oral, any: (i) collective bargaining agreement or contract with any labor union, whether formal or informal; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 4.14 or the schedules relating thereto; (iii) stock purchase, stock option or similar plan, other than as described in Section 4.14 or the schedules relating thereto; (iv) contract for the employment of any officer, individual employee officer or group of employees or other person on a full-time, part-time or consulting basis or any severance agreements“partner”; (iiiv) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien lien on any material portion of the assets of HICompany’s assets; (iv) agreements with respects to the lending or investing of funds; (vvi) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of businessmaterial guaranty; (vii) lease or agreement under which HI it is lessee of, or holds or operates, operates any personal property owned by any other party party, for which the annual rental exceeds $50,000150,000; (viii) lease or agreement under which HI it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which the annual rental exceeds $50,000150,000 other than as disclosed on the Leased Real Property Schedule; (ix) contract or group of related contracts with the same party for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for services, under which the furnishing or receipt undelivered balance of such products and services which either calls for performance over has a period of more than one year and involves a sum selling price in excess of $50,000 per year150,000; (x) contract relating to or group of related contracts with the distribution, marketing or sales same party for the sale of its products or services (including contracts to provide advertising allowances under which the undelivered balance of such products or promotional services) involving more than services has a sales price in excess of $50,000 per year500,000; (xi) franchise agreements, (xii) contract which prohibits it the Company from freely engaging in business anywhere in the world, other than standard employee non-solicitation or conflict of interest clauses contained therein, or requires any Company to conduct its consulting services business with any client on an exclusive basis or otherwise limits such business with a non-compete clause; (xii) partnership or joint venture agreements or (xiii) any other agreement material to HI agreements not entered into in the ordinary course of businessbusiness where the subject matter exceeds $150,000. The Contracts Schedule also includes a list (with brief description) of all powers of attorney granted by any Company in effect on the date hereof. (b) Except as specifically contemplated by this AgreementBuyer either has been supplied with, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30given access to, 1999, (ii) HI has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11. (c) HI has provided the Investor with a true and correct copy of all written contracts which are referred to on Schedule 5.11 which have been requested by Investorsthe Contracts Schedule, together with all material amendments, waivers or other changes thereto. (c) The Companies are not in material default under any contract listed on the Contracts Schedule. Each contract listed on the Contracts Schedule is a valid and binding agreement enforceable by and against the Company which is a party thereto in accordance with its terms assuming each such contract is the valid and binding agreement of the counterparty(ies), except to the extent enforcement thereof may be limited or affected by any applicable bankruptcy, insolvency, receivership, reorganization, moratorium or similar laws affecting creditors’ rights generally or by general principles of equity or public policy.

Appears in 1 contract

Samples: Stock Purchase Agreement (Diamond Management & Technology Consultants, Inc.)

Contracts and Commitments. (ai) Except as specifically expressly contemplated by this Agreement and except as set forth on of the attached Schedule 5.11, HI is Closing the Company will not be a party to to, or bound by, whether any currently effective written or oral, any: : (iA) collective bargaining agreement or any contract with any labor union, whether formal or informal; ; (iiB) contract for the employment of any officer, individual employee or group of employees employee, or other person or entity on a full-time, part-time time, consulting or consulting other basis which, in any way, restricts or limits its right to terminate such contract at will (other than the existence of any law, public policy, or any oral discussions, or oral statements of policy which might, under current law, be interpreted as imposing upon the Company any covenant of good faith and fair dealing, or otherwise generally restrict the Company's ability to terminate its employees other than on an "at-will" basis or any severance agreements; within sixty (iii60) days following delivery of such notice); (C) agreement or indenture relating to the borrowing of money or to the mortgaging, pledging, transfer of a security interest, or otherwise placing a Lien lien on any material asset or material group of assets of the assets of HI; Company; (ivD) agreements with respects to the lending or investing of funds; (v) guaranty guarantee of any obligation for borrowed money or otherwise, other than endorsements made for collection; obligation; (vi) license or royalty agreements except those entered into in the ordinary course of business; (viiE) lease or agreement under which HI it is the lessee of, of or holds or operates, any personal property owned by any other party for which annual rental exceeds $50,000; (viii) lease or agreement under which HI is lessor of or permits any third party to hold or operate operates any property, real or personal, owned by any other party, other than leases or controlled by it for agreements under which the aggregate annual rental exceeds payments of the Company do not, in the aggregate, exceed $50,000; 25,000; (ixF) contract agreement or group of related contracts agreements with the same party for or any group of parties who are affiliated, which requires an aggregate payment by or to the purchase or sale of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance over a period of more than one year and involves a sum Company in an amount in excess of $50,000 per year; (x) contract relating with respect to the distribution, marketing purchase or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits it from freely engaging in business anywhere in the world; or (xiii) any other agreement material to HI not entered into orders in the ordinary course of business, $50,000, and (y) with respect to any other contracts, $25,000; (G) warranty agreement of the Company with respect to services provided or products sold, licensed or leased by the Company as seller, licensor or lessor; (H) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or (I) any other agreement which in the best judgment of the Company is material to its business. (b) Except as specifically contemplated by this Agreement, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI The Company has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, it and is not in default under, or in material breach of, or after due inquiry, in receipt of any claim of default under or breach of, any contract material agreement, to which it is a party or commitment required to be disclosed on which its assets are subject; the Schedule 5.11, (iii) HI Company has no present expectation or intention of not fully performing all such obligations; the Company does not have any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material anticipatory breach by the other parties to any material contract or commitment, to which it is a party or to which any of its assets is subject; and the Company is not a party to any contract specific on Schedule 5.11or contracts which, either individually or in the aggregate, are reasonably likely to result in a material loss to the Company. There are no warranty claims or other uninsured claims under completed contracts which is reasonably likely to involve a material monetary liability which is not reserved against in the Financial Statements. (ciii) HI has provided To the Investor with best knowledge of the Company, no officer of the Company is a party to any oral or written contract which prohibits, or materially restricts or limits his performance of his duties or the fulfillment of his obligations as an employee and an officer of the Company. (iv) A true and correct copy of all each of the written contracts referred to in the Disclosure Schedule and a description of the oral contracts which are referred to on Schedule 5.11 which have been requested by Investorsin the Disclosure Schedule, together with all any amendments, waivers or other changes thereto., have been supplied to the Investors' special counsel, Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.

Appears in 1 contract

Samples: Stock and Subordinated Note Purchase Agreement (Apex Pc Solutions Inc)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on Schedule 2.11(a) or Schedule 2.14(a), none of the attached Schedule 5.11Companies is party, HI is not a party or subject, to or bound by, whether written or oral, any: : (i) collective bargaining agreement relating to any completed or contract with any labor unionpending business acquisition or divestiture since January 1, whether formal or informal; 2015; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan; (iii) stock option or similar plan; (iv) contract (I) for the employment of any officer, individual employee or group other Person, (II) providing for the payment of employees any cash or other person on a full-timecompensation or benefits upon the consummation of the transactions contemplated hereby, part-time or consulting basis (III) that provides severance or other benefits for any severance agreements; Person; (iiiv) agreement under which any of the Companies created, incurred or indenture relating to the borrowing of money assumed any Indebtedness (including any conditional sales agreement, sale-leaseback or to capitalized lease) or mortgaging, pledging or otherwise granting or placing a Lien on any portion of any of the assets Companies’ assets, other than as identified in Schedule 2.20; (vi) any contract involving unpaid amounts in excess of HI; $25,000 with a “change in control” clause; (iv) agreements with respects to the lending or investing of funds; (vvii) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of business; (vii) lease or agreement under which HI is lessee of, or holds or operates, any personal property owned by any other party for which annual rental exceeds $50,000; Indebtedness; (viii) lease or agreement under which HI it is lessee of or holds or operates any personal property owned by any other Person, for which the annual rental exceeds $25,000; (ix) lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which the annual rental exceeds $50,000; 25,000; (ixx) contract or group of related contracts with the same party for the purchase or sale by any of raw materials, commodities, supplies, the Companies of products or other personal property or for services, under which the furnishing or receipt undelivered balance of such products and services which either calls for performance over has a period of more than one year and involves a sum purchase price in excess of $50,000 per year; (x) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits it from freely engaging in business anywhere 25,000 in the world; or aggregate (xiii) any other agreement material to HI not than purchase orders and transportation contracts entered into in the ordinary course of business); (xi) contract or group of related contracts with the same party for the sale by any of the Companies of products or services under which the undelivered balance of such products or services has a sales price in excess of $25,000 in the aggregate (other than sales orders and transportation contracts entered into in the ordinary course of business); (xii) any other contract, lease or agreement that cannot be canceled by a Company without penalty or further payment or obligation and without more than thirty (30) days’ notice and with remaining fixed payments in excess of $25,000 under any such contract; (xiii) agreement containing covenants that in any way purport to restrict the right of any Company to engage in its current line of business, engage in any line of business, compete with any Person or solicit customers; (xiv) hedging arrangement or forward, swap, derivatives or futures contract; (xv) fuel purchasing contract; (xvi) joint venture, partnership, franchise, joint marketing agreement or any other similar contract or agreement (including sharing of profits, losses, costs or liabilities by any Company with any other Person); (xvii) material licensing agreement or other material contract or agreement with respect to Intellectual Property, including material contracts or agreements with current or former employees, consultants or contractors regarding the appropriation or non-disclosure of any Intellectual Property; (xviii) agreement under which any Company has made loans or advances to any other Person, and such advances or loans remain outstanding in an amount of greater than $10,000, except advancement of reimbursable ordinary and necessary business expenses made to directors, officers, employees and Independent Contractors (including but not limited to advances to Independent Contractors for vehicle repairs) of any Company in the ordinary course of business; (xix) written contract or agreement with any consultant or employee or any current or former officer, director, equityholder or Affiliate of any Company (true, correct and complete copies of which have been made available to Buyer); (xx) settlement, conciliation or similar agreement, the performance of which will involve payment after the date of this Agreement of consideration in excess of $25,000 or governmental monitoring, consent decree or reporting responsibilities; (xxi) any contract or agreement, not otherwise covered by the foregoing, that is otherwise material to the Companies, taken as a whole; or (xxii) any amendment, supplement and modification (whether oral or written) in respect of any of the foregoing. (b) Except as specifically contemplated by this AgreementThe Companies have made available to Buyer a true, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI has performed in all material respects all correct and complete copy of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract each written agreement set forth on Schedule 5.112.11(a) or Schedule 2.14(a), including all modifications and amendments thereto. With respect to each agreement set forth on Schedule 2.11(a) or Schedule 2.14(a), such agreement: (i) is valid, binding and in full force and effect in all material respects; (ii) will remain unmodified and in full force and effect immediately after the Closing without any right on the part of any counterparty, including with the passage of time or notice, or both, to terminate, modify or impose any penalty as a result of the transactions contemplated hereby; (iii) is and will remain, including with the passage of time or notice, or both, immediately after the Closing enforceable by the applicable Company in accordance with its respective terms; and (iv) HI has no knowledge none of the Companies, nor, to Sellers’ Knowledge, any other party, is in material breach or anticipated material breach by default under such agreement. No Company has received any written notice (or to Sellers’ Knowledge, any other notice) of the intention of any party to terminate any contract specific agreement listed on Schedule 5.112.11(a). There are no oral agreements with respect to the subject matter of Schedule 2.11(a) or Schedule 2.14(a) that, individually or in the aggregate, are material to the Company. (c) HI has provided Schedule 2.11(c) sets forth a list of the Investor transportation contracts with a true the Companies’ ten (10) largest customers (by consolidated revenue) for the first eight (8) months of 2018, true, correct and correct copy complete copies of which, including all written contracts which are referred to on Schedule 5.11 which modifications and amendments thereto, have been requested made available to Buyer (collectively, “Customer Contracts”). None of the Companies, nor, to Sellers’ Knowledge, any other party, is in material breach or default under such contract. Other than customary notice to the applicable Company that such Company must bid to continue to provide services to a customer as part of the customer’s normal bid cycles, no Company has received written notice (or, to Sellers’ Knowledge, any other notice) from any customer that such customer intends to terminate, substantially modify, fail to renew or reduce volumes substantially under, any such Customer Contract. (d) Schedule 2.11(d) sets forth a list of the contracts with the Companies’ ten (10) largest vendors or suppliers (by Investorsconsolidated expenses) for the first eight (8) months of 2018, together with true, correct and complete copies of which, including all amendmentsmodifications and amendments thereto, waivers have been made available to Buyer (collectively, “Vendor Contracts”). None of the Companies, nor, to Sellers’ Knowledge, any other party, is in material breach or default under such contract. No Company has received written notice (or, to Sellers’ Knowledge, any other changes theretonotice) from any vendor that such vendor intends to terminate, substantially modify, fail to renew or reduce volumes substantially under any such Vendor Contract.

Appears in 1 contract

Samples: Equity Purchase Agreement (Usa Truck Inc)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on the attached Schedule 5.11Contracts Schedule, HI no Company or Company Subsidiary is not a party to or bound by, whether written or oral, any: (i) agreement relating to any acquisition of a business by such Company or Company Subsidiary within the last three years; (ii) collective bargaining agreement or contract with any labor union, whether formal or informal; (iiiii) written bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 4.13 or the schedules relating thereto; (iv) stock purchase, stock option or similar plan; (v) contract for the employment of any officer, individual employee or group of employees or other person on a full-time, part-time or consulting basis with annual payments in excess of $100,000; (vi) agreement, indenture, note or any severance agreements; (iii) agreement or indenture other evidence relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien except Permitted Liens on any material portion of the assets of HIsuch Company's or such Company Subsidiary's assets; (iv) agreements with respects to the lending or investing of funds; (vvii) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of business; (vii) lease or agreement under which HI is lessee of, or holds or operates, any personal property owned by any other party for which annual rental exceeds $50,000guaranty; (viii) lease or agreement under which HI it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $100,000; (ix) lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personalpersonal (including equipment), owned or controlled by it for which the annual rental exceeds $50,000100,000; (ixx) contract or group of related contracts with the same party for the purchase or sale of raw materials, commodities, supplies, and its Affiliates to provide products or other personal property or for services under which the furnishing or receipt undelivered balance of such products and services which either calls for performance over has a period of more than one year and involves a sum selling price in excess of $50,000 per year; (x) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year100,000; (xi) franchise agreements, (xii) contract which prohibits it such Company or such Company Subsidiary from freely engaging in business anywhere in the world; (xii) contract or group of contracts with suppliers of pharmaceutical products under which the undelivered balance of such products has a sales price in excess of $100,000; (xiii) agreement for capital expenditures by the Companies or Company Subsidiaries in excess of $50,000; (xiv) agreement, contract or other arrangement with Seller or any Affiliate of Seller (other than a Company or Company Subsidiary); (xv) any other agreement material to HI Contract or group of related Contracts either involving more than $500,000 of revenue or payments for the period from January 1, 2003 through and including November 30, 2003, or not entered into in the ordinary course of business, or (xvi) contract with any drug company (all of the foregoing agreements, contracts and leases, the "Company Contracts"). (b) Except as specifically contemplated by this Agreement, or disclosed on Schedule 5.11, (i) no contract or commitment required The Companies have made available to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI has performed in Buyer true and correct copies of all material respects all of the obligations required to be performed by HI in connection with the written contracts or commitments required to be disclosed listed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11Contracts Schedule. (c) HI Each Company Contract: (i) is legal, valid, binding, enforceable, and in full force and effect against the Company party thereto and to the Companies' knowledge, the other party thereto; and (ii) the Companies and the Company Subsidiaries are not and to the Company's knowledge no other party is in breach or default, and no event has provided occurred which with notice or lapse of time would constitute a breach or default, or permit termination, modification, or acceleration, under the Investor Company Contract. There is no Company Contract that under which any Company or Company Subsidiary (i) is at risk for all or any part of the drug ingredient cost (including but not limited to any capitated contracts, risk-sharing or "risk band" contracts, contracts with performance guarantees related to the drug ingredient cost, or similar contracts), (ii) guarantees a true and correct copy minimum rebate amount (whether stated as a percentage, a specific amount per prescription, or otherwise) to the customer, other than as set out on the attached Contracts Schedule, or (iii) except as set forth on the Contracts Schedule, undertakes to offer the customer the best pricing offered to any other customer or class of all written contracts which are referred to on Schedule 5.11 which have been requested by Investors, together with all amendments, waivers or other changes theretocustomers.

Appears in 1 contract

Samples: Stock Purchase Agreement (Express Scripts Inc)

Contracts and Commitments. (ai) Except (i) as specifically expressly contemplated by this Agreement and except (ii) as set forth on the attached Schedule 5.115K - Contracts, HI Schedule 5Q - Employee Benefits or Schedule 5U - Real Property, (iii) for agreements which were contained in the facility files in the data room at LCA's headquarters on June 19 and 20, 1996, the originals of which will be delivered by LCA to the Company pursuant to Section 3I (the "Facility File Contracts"), (iv) agreements provided to Purchaser's special counsel through the date hereof, indices of which are attached as Schedule 5K(iv)-Supplemental Contracts and (v) for agreements which are terminable by the Company upon 90 days or less notice without penalty or not otherwise material, neither the Company nor any Subsidiary is not a party to or bound by, whether by any written or oral: (a) pension, any: (i) profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to employees or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, whether formal or informal; severance agreements, programs, policies or arrangements; (iib) contract for the employment of any officer, individual employee or group of employees or other person Person on a full-time, part-time time, consulting or consulting basis other basis (c) contract under which the Company or any severance agreements; Subsidiary has advanced or loaned any other Person amounts in the aggregate exceeding $50,000; (iiid) agreement or indenture relating to Indebtedness (other than borrowed money) in amounts in excess of $50,000, any agreement or indenture relating to borrowed money, or the borrowing of money mortgaging, pledging or to otherwise placing a Lien on any material asset or material group of assets of the assets of HI; Company or any Subsidiary except for, in any case, Indebtedness that will be discharged by the Existing Stockholders at the Closing; (ive) agreements with respects to the lending or investing of funds; (v) guaranty guarantee of any obligation for borrowed money or otherwiseobligation, other than endorsements made for collection; those to be released at or prior to the Closing; (vi) license or royalty agreements except those entered into in the ordinary course of business; (viif) lease or agreement under which HI the Company or any Subsidiary is lessee of, of or holds or operatesoperates any property, any personal property real or personal, owned by any other party party, except for any lease of real or personal property under which the aggregate annual rental exceeds payments do not exceed $50,000; ; (viiig) lease or agreement under which HI the Company or any Subsidiary is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which annual rental exceeds $50,000; the Company or any Subsidiary; (ixh) contract or group of related contracts with the same party for or group of affiliated parties the purchase performance of which involves consideration in excess of $50,000; (i) assignment, license, indemnification or sale of raw materialsagreement with respect to any intangible property (including, commoditieswithout limitation, suppliesany Intellectual Property); (j) any warranty agreement with respect to its services rendered or its products sold or leased; (k) agreement under which it has granted any Person any registration rights (including, products without limitation, demand and piggyback registration rights); (l) distribution or franchise agreement; (m) contract or agreement expressly prohibiting it from freely engaging in any business or competing anywhere in the world; or (n) any other personal property or for the furnishing or receipt of services agreement which either calls for performance over a period of more than one year and involves a sum consideration in excess of $50,000 per year; (x) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits it from freely engaging in business anywhere in the world; or (xiii) any other agreement material to HI not entered into in the ordinary course of businessannually. (b) Except as specifically contemplated by this Agreement, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI has performed in all material respects Those Facility File Contracts which if canceled or terminated could reasonably be expected to materially impair the business of the Company or the Company's ability to provide necessary services to a significant number of its patients or hinder the Company's compliance with Legal Requirements, and all of the contracts, agreements and instruments set forth on Schedule 5K - Contracts, are referred to collectively as the "Applicable Contracts." The Applicable Contracts are valid, binding and enforceable against the Company in accordance with their respective terms. The Company has performed all material obligations required to be performed by HI in connection with it under the contracts or commitments required to be disclosed on the Schedule 5.11, Applicable Contracts and is not not, except as set forth on Schedule 5K - Contracts, in material default under or in breach of nor in receipt of any written claim of material default or breach under any contract Applicable Contract; to the Existing Stockholders' knowledge, no event has occurred which with the passage of time or commitment required the giving of notice or both would result in a material default or breach by the Company or any Subsidiary under any Applicable Contract; to be disclosed on the Schedule 5.11Existing Stockholders' knowledge, there is no breach or anticipated breach by the other parties to any Applicable Contract. (iii) HI The Purchaser's special counsel has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11. (c) HI has provided the Investor been supplied with a true and correct copy of all each of the written instruments, plans, contracts and agreements and an accurate description of each of the oral arrangements, contracts and agreements which are referred to on Schedule 5.11 which have been requested by Investors5K - Contracts, together with all amendments, waivers or other changes thereto.

Appears in 1 contract

Samples: Recapitalization Agreement (Living Centers of America Inc)

Contracts and Commitments. (a) Except as specifically contemplated by set forth on Item 4.10 of the Disclosure Schedule, stated as of the date of this Agreement and except again as set forth on of the attached Schedule 5.11Closing Date, HI the Company is not a party to or bound by, whether written or oral, any: (i) collective bargaining agreement or contract with any labor union, whether formal or informal; (ii) bonus, pension, profit sharing, retirement, severance or other form of deferred compensation plan or agreement, other than as described in Section 4.14 of this Agreement or the items of the Disclosure Schedule relating thereto; (iii) stock purchase, stock option or similar plan; (iv) contract for the employment or retention of or for providing severance or non-compete related payments to any officer, individual employee or group of employees or other person on a full-time, part-time or consulting basis or for providing any severance agreementscompensation in connection with the sale of the Company; (iiiv) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any of the assets of HIthe Company or letter of credit or surety bond arrangements; (iv) agreements with respects to the lending or investing of funds; (vvi) guaranty of any obligation for borrowed money or otherwise, otherwise or other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of businessmaterial guaranty; (vii) lease or agreement under which HI it is lessee of, or holds or operatesoperates any property, any personal property real or personal, owned by any other party party, for which the annual rental exceeds $50,000; (viii) lease or agreement under which HI it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which the annual rental exceeds $50,000; (ix) contract or group of related contracts with the same party or, to the Company’s Knowledge, group of related parties for the purchase or sale of raw materials, commodities, supplies, products or other personal property services, under which the undelivered balance of such products or for the furnishing or receipt of services which either calls for performance over a period of more than one year and involves a sum is in excess of $50,000 per yearannually; (x) contract relating or group of related contracts with the same party or, to the distributionCompany’s Knowledge, marketing or sales group of its related parties for the sale of products or services (including contracts to provide advertising allowances under which the undelivered balance of such products or promotional services) involving more than services is in excess of $50,000 per yearannually; (xi) franchise agreements, (xii) contract which prohibits it contracts prohibiting the Company from freely engaging in business anywhere in the worldUnited States; (xii) sales, distributor or franchise agreements under which annual payments made or received by the Company in fiscal 2004 are expected to exceed $50,000; (xiii) material contracts relating to the marketing, sale, advertising or promotion of its products or services; (xiv) agreements with any supplier or customer under which the Company is obligated to indemnify such supplier or customer against liability claims; (xv) agreements relating to ownership of or investments in any business or enterprise, including investments in joint ventures and minority equity investments; (xvi) settlement, conciliation or similar agreements; (xvii) agreements with respect to the lending or investing of funds; or (xiiixviii) any other agreement material to HI contract or agreement, whether or not entered into made in the ordinary course of business, which is material to the Company or the absence of which would reasonably be expected to have a Material Adverse Effect. (b) Except as specifically contemplated by this Agreement, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11. (c) HI has provided the Investor with a true True and correct copy copies of all written contracts which are referred to on Schedule 5.11 which have been requested by InvestorsItem 4.10 of the Disclosure Schedule, together with all material amendments, waivers or other changes thereto have been made available to Parent. Each oral contract of the type that would be required to be disclosed in Section 4.10(a) above is described on Item 4.10 of the Disclosure Schedule. The Company has provided Parent with complete and accurate copies of the Company Articles of Incorporation and the Company Bylaws. (c) All of the contracts, agreements and instruments set forth on Item 4.10 of the Disclosure Schedule are, to the Company’s Knowledge, valid, binding and enforceable in accordance with their respective terms as against the counterparties thereto, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors’ rights and as limited by general principles of equity that restrict the availability of equitable remedies. The Company has performed all obligations required to be performed by it and is not in material default under any contract, agreement or instrument set forth on Item 4.10 of the Disclosure Schedule. No event has occurred which with the passage of time or the giving of notice or both would reasonably be expected to result in a material default, breach or event of noncompliance by the Company or, to the Company’s Knowledge, any other party under any such contract, agreement or instrument. Except as set forth on Item 4.10 of the Disclosure Schedule, (i) the Company has not received written notice of the intention of any party to cancel or terminate any contract, agreement or instrument required to be set forth on Item 4.10 of the Disclosure Schedule; and (ii) to the Company’s Knowledge, there has not been any breach or anticipated breach by the other parties to any such contract, agreement or instrument.

Appears in 1 contract

Samples: Merger Agreement (Equifax Inc)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on Schedule 4.08, Schedule 4.09, Schedule 4.11(a) or Schedule 4.16(a), neither the attached Schedule 5.11, HI Company nor any of its Subsidiaries is not a party to to, nor are any assets or properties of the Company or any of its Subsidiaries bound by, whether written or oralsubject to, any: (i) collective bargaining agreement bonus, pension, profit sharing, retirement or contract other form of deferred compensation plan which may provide compensation or benefits of at least $100,000 or which when aggregated with any labor union, whether formal all such other plans not included on such schedules may provide compensation or informalbenefits of at least $500,000; (ii) stock purchase, stock option, stock appreciation or similar plan; (iii) contract for the employment or engagement as a consultant of any officer, individual employee or group of employees or other person on a full-time, part-time or consulting basis involving an annual compensation commitment by the Company or any severance agreementsof its Subsidiaries in excess of $100,000; (iiiiv) contract, agreement or indenture relating to the borrowing Indebtedness in excess of money $1,000,000 or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of HI; (iv) agreements with respects to the lending or investing of fundsCompany's assets; (v) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collectionin excess of $1,000,000; (vi) license or royalty agreements except those entered into in the ordinary course of business; (vii) lease lease, contract or agreement under which HI it is lessee of, or holds or operates, any personal property owned by any other party party, for which the annual rental exceeds $50,000; 100,000, (viii) lease or agreement under which HI is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which annual rental exceeds $50,000; (ixvii) contract or group of related contracts with the same party for the purchase of inventories, supplies or sale services, under which the undelivered balance of raw materialssuch inventories, commodities, supplies, products supplies or other personal property or for the furnishing or receipt of services which either calls for performance over has a period of more than one year and involves a sum selling price in excess of $50,000 per year100,000, other than contracts which are terminable by the Company or one of its Subsidiaries upon 30 days' notice or less without the payment of any termination fee or penalty; (xviii) contract relating to or group of related contracts with the distribution, marketing or sales same party for the sale of its products or services (including under which the undelivered balance of such products or services has a sales price in excess of $100,000, other than contracts to provide advertising allowances which are terminable by the Company or promotional services) involving more than $50,000 per yearone of its Subsidiaries upon 30 days' notice or less without the payment of any termination fee or penalty; (xi) franchise agreements, (xiiix) contract which prohibits it or limits the Company or a Subsidiary in any material respect from freely engaging in business in the United States or anywhere else in the world; (x) joint venture, partnership or (xiii) any other agreement material to HI not entered into in the ordinary course of business. (b) Except as specifically contemplated by this Agreement, or disclosed on Schedule 5.11, (i) no strategic alliance contract or commitment required agreement relating to be disclosed on Schedule 5.11 has been breached the assets, properties or canceled by the other party since June 30, 1999, (ii) HI has performed in all material respects all business of the obligations required Company or any of its Subsidiaries or by or to be performed by HI in connection with the contracts which any of them or commitments required to be disclosed on the Schedule 5.11any of their assets or properties are bound or subject; (xi) distribution, sales representative and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11. (c) HI has provided the Investor with a true and correct copy of all written contracts which are referred to on Schedule 5.11 which have been requested by Investors, together with all amendments, waivers or other changes thereto.sales agency

Appears in 1 contract

Samples: Merger Agreement (Twi Holdings Inc)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on Schedule 3.06(a), the attached Schedule 5.11, HI Company is not a party party, or subject, to any oral or bound by, whether written or oral, any: written: (i) collective bargaining agreement relating to any completed or contract with any labor unionpending business acquisition or divestiture since January 1, whether formal or informal; 2016; (ii) contract (A) for the employment of any officer, individual employee or group of employees employee, or other person on a full-time, part-time or consulting basis or any severance agreements; (iii) agreement or indenture relating to the borrowing of money or to placing a Lien on any of the assets of HI; (iv) agreements with respects to the lending or investing of funds; (v) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license any offer letter or royalty agreements except those entered into oral at-will contract in the ordinary course of business; ), (viiB) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated hereby, or (C) that provides severance or similar benefits for any person upon termination of such person’s employment with the Company; (iii) agreement under which the Company created, incurred or assumed any Indebtedness (including any conditional sales agreement, sale-leaseback or capitalized lease) or mortgaging, pledging or otherwise granting, or placing a Lien (other than Permitted Liens) on any portion of any of the Company's assets; (iv) guaranty of any Indebtedness; (v) lease or agreement under which HI it is lessee of, of or holds or operates, operates any personal property Personal Property owned by any other party Person, for which the annual rental exceeds $50,000; 150,000; (viiivi) lease or agreement under which HI it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which the annual rental exceeds $50,000; 120,000; (ixvii) contract or group of related contracts with the same party for the purchase or sale by the Company of raw materials, commodities, supplies, products or other personal property or for services, under which the furnishing or receipt undelivered balance of such products and services which either calls for performance over has a period of more than one year and involves a sum purchase price in excess of $50,000 per year; (x) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits it from freely engaging in business anywhere 250,000 in the world; or aggregate (xiii) any other agreement material to HI not than purchase orders and transportation contracts entered into in the ordinary course of business); (viii) contract or group of related contracts with the same party for the sale by the Company of products or services under which the undelivered balance of such products or services has a sales price in excess of $250,000 in the aggregate (other than sales orders and transportation contracts entered into in the ordinary course of business); (ix) any other contract, lease, or agreement that cannot be canceled by the Company without material penalty, payment, or other obligation and without more than ninety (90) days' notice and with remaining fixed payments in excess of $500,000 in the aggregate; (x) agreements restricting the Company from engaging in or competing with any business activity in any geographic area (other than customary confidentiality provisions); (xi) agreements that contain any restrictive covenant restricting the Company concerning the operation of its current business operations, the solicitation of customers, or the solicitation or hiring of employees (other than customary confidentiality provisions); (xii) hedging arrangement or forward, swap, derivatives, or futures contract; (xiii) fuel purchasing contract; (xiv) collective bargaining agreement with any labor organization that represents employees of the Company; (xv) joint venture, partnership, franchise, joint marketing agreement or any other similar contract or agreement involving the sharing of profits, losses, costs, or liabilities by the Company with any other Person (other than customary expense and cost allocation provisions in commercial contracts, agreements or arrangements entered into in the ordinary course of business); (xvi) material licensing agreement or other material contract or agreement with respect to Intellectual Property, including material contracts or agreements with current or former employees, consultants or contractors regarding the appropriation or non-disclosure of any Company Intellectual Property; (xvii) agreement under which the Company has made loans or advances to any other Person, and such advances or loans remain outstanding, except advancement of reimbursable ordinary and necessary business expenses made to directors, officers, employees, and independent contractors and third-party transportation providers of the Company in the ordinary course of business and other than account and trade payables issued in the ordinary course of business; (xviii) contract or agreement (including any consulting agreements) with any current or former officer, director, or stockholder, or any Affiliate of the Company; (xix) settlement, conciliation or similar agreement, the performance of which will involve payment after the Closing Date of consideration in excess of $100,000 or governmental monitoring, consent decree or reporting responsibilities after the Closing Date; (xx) agreements with ongoing indemnity obligations or rights other than customary indemnities in commercial contracts, agreements or arrangements entered into in the ordinary course of business; or (xxi) any amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. (b) Except as specifically contemplated by this AgreementThe Company has made available to Buyer a true, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11correct, and is not in receipt complete copy of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract each written agreement set forth on Schedule 5.113.06(a), including all modifications and amendments thereto, and has made available to Buyer a true, correct, and complete written summary of the material terms of each oral agreement listed on Schedule 3.06(a). With respect to each agreement set forth on Schedule 3.06(a), and except as otherwise indicated on Schedule 3.06(a), such agreement: (ivi) HI has no knowledge is valid and binding on the Company and, to the Sellers' Knowledge, binding on the other parties thereto and in full force and effect in all material respects; (ii) is enforceable by the Company in accordance with its respective terms (except as enforceability may be limited by bankruptcy laws, other similar laws affecting creditors' rights and general principles of equity affecting the availability of equitable remedies); and (iii) neither the Company, nor, to the Sellers’ Knowledge, any other party thereto, is in material breach or anticipated material breach by default under such agreement. Except as set forth on Schedule 3.06(b), no counterparty will, as the result of the transactions contemplated hereby, have any right (including with the passage of time or notice or both) to terminate, modify or impose a penalty under any agreement listed on Schedule 3.06(a). Since January 1, 2020, the Company has not received any written notice of the intention of any party thereto to terminate any contract specific agreement listed on Schedule 5.113.06(a). (c) HI has provided Schedule 3.06(c) sets forth a list of the Investor transportation contracts with the Company's fifteen (15) largest less than load (LTL) customers and ten (10) largest dedicated truckload customers (by consolidated revenue) for the fiscal year ended December 31, 2020 and the three (3)-month period ended March 31, 2021(each, a true “Material Customer” and correct copy collectively, the “Material Customers”), true, correct, and complete copies of which, including all written contracts which are referred modifications and amendments thereto, have been made available to Buyer (collectively, “Customer Contracts”), and neither the Company nor, to the Sellers’ Knowledge, any other party thereto, is in material breach or default under such Customer Contract. Except as set forth on Schedule 5.11 3.06(c): (i) no Material Customer has cancelled or terminated its Customer Contract with the Company since the date of the Latest Balance Sheet; (ii) no Material Customer has stopped or materially decreased, or has threatened in writing to stop or materially decrease, the rate of purchasing products or services from the Company or otherwise has materially and adversely modified, or threatened in writing to materially and adversely modify, its Customer Contract with the Company since the date of the Latest Balance Sheet; (iii) other than bids that occur in the ordinary course of business, as of the Closing no Material Customer is seeking in writing to materially and adversely change or renegotiate the pricing terms or terms of its Customer Contract with the Company under which the Company is providing services or selling goods to such Material Customer since the date of the Latest Balance Sheet; and (iv) the Company is not involved in any formal dispute with any Material Customer. (d) Schedule 3.06(d) sets forth a list of the contracts with the Company's twenty (20) largest vendors or suppliers (by consolidated expenses) for the fiscal year ended December 31, 2020 and the three (3)-month period ended March 31, 2021 (each a “Material Vendor” and collectively, the “Material Vendors”), true, correct, and complete copies of which, including all modifications and amendments thereto, have been requested by Investorsmade available to Buyer (collectively, together “Vendor Contracts”), and neither the Company nor, to the Sellers’ Knowledge, any other party thereto, is in material breach or default under such Vendor Contract. Except as set forth on Schedule 3.06(d): (i) no Material Vendor has cancelled or terminated its Vendor Contract with all amendmentsthe Company since the date of the Latest Balance Sheet; (ii) no Material Vendor has stopped or materially decreased, waivers or other changes theretohas threatened in writing to stop or materially decrease, the rate of supplying materials, products or services to the Company or otherwise has materially and adversely modified, or threatened in writing to materially and adversely modify, its Vendor Contract with the Company since the date of the Latest Balance Sheet; (iii) as of the Closing, no Material Vendor is seeking in writing to materially and adversely change or renegotiate the pricing terms or terms of its Vendor Contract with the Company under which the Company is receiving services or purchasing materials or goods from such Material Vendor; and (iv) the Company is not involved in any formal dispute with any Material Vendor.

Appears in 1 contract

Samples: Stock Purchase Agreement (Knight-Swift Transportation Holdings Inc.)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on Schedule 2.9(a), neither the attached Schedule 5.11, HI Company nor any of its Subsidiaries is not a party to or bound by, whether written or oral, any: : (i) collective bargaining agreement or contract with any labor union, whether formal or informal; (ii) contract for the employment of any officer, individual employee or group of employees or other person on a full-time, part-time or consulting basis or any severance agreements; (iii) agreement or indenture relating to the borrowing of money in excess of $2,000,000 or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any assets or properties of the assets of HI; Company or its Subsidiaries; (iv) agreements with respects to the lending or investing of funds; (vii) guaranty of any obligation for borrowed money in excess of $2,000,000 or otherwise, other than endorsements made for collection; guaranty of any obligation in excess of $2,000,000; (vi) license or royalty agreements except those entered into in the ordinary course of business; (viiiii) lease or agreement under which HI it is lessee of, or holds or operates, operates any real or personal property owned by any other party party, for which the annual rental rent exceeds $50,000; 2,000,000 (viiiexcluding the Real Property Leases); (iv) lease or agreement under which HI it is lessor of of, or permits any third party to hold or operate any real or personal property, real or personal, owned or controlled by it for which the annual rental rent exceeds $50,000; 2,000,000 (ixexcluding the Real Property Leases); (v) contract Contract or group of related contracts Contracts with the same party for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services (other than purchase and supply orders received or entered into in the ordinary course of business and Real Property Leases) (A) which either calls for performance over a period of more than one year twelve (12) months from the date of this Agreement and involves a sum annual payments in excess of $50,000 per year; 500,000 or (xB) contract which involves annual payments of more than $2,000,000; (vi) Contract relating to (A) any proposed acquisition of any Equity Interest or business of any other Person or (B) any disposition of any Equity Interest of any of the distribution, marketing Company or sales any of its products Subsidiaries or any material amount of assets of the Company or any of its Subsidiaries, in each case, in effect as of the date hereof; (vii) Contract prohibiting or restricting the ability of the Company or any of its Subsidiaries to conduct any business in any geographical area or to compete with any Person or which the Company or any of its Subsidiaries is obligated to purchase a minimum quantity of goods or services (including contracts and which has not been substantially fulfilled) or has agreed to provide advertising allowances purchase goods or promotional servicesservices exclusively from a particular supplier, vendor or similar Person; (viii) involving more Contract that contains most favored nation pricing provisions in favor of any third party; (ix) Contracts with any Governmental Body (other than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits it from freely engaging in business anywhere in the world; license agreements or (xiii) any other agreement material to HI not Permits entered into in the ordinary course of business); (x) Contracts for Indebtedness; (xi) Contracts under which the Company or any of its Subsidiaries has advanced or loaned any other Person amounts in the aggregate exceeding $500,000; (xii) joint venture, limited liability company and partnership agreements, Company Specified Agreements or other agreements involving the sharing of profits, losses, costs or liabilities with any third party (which, for the avoidance of doubt, shall not include intercompany agreements between or among the Company and its Subsidiaries); (xiii) non-disclosure, non-solicitation or other similar restrictive agreements or covenants by which the Company or any of its Subsidiaries is bound, in each case, other than agreements entered into in the ordinary course of business; (xiv) Contracts with any of its directors or non-employee Affiliates (other than intercompany agreements entered into in the ordinary course of business); and (xv) Contracts with any of its officers or other employees (in each case, other than Contracts entered into in the ordinary course of business and based on standard form agreements that have been made available to Purchaser, provided such Contracts do not materially differ from such forms). (b) Except as specifically contemplated by this AgreementNeither the Company nor its Subsidiaries have violated, breached or disclosed on Schedule 5.11committed any default under and, (i) to the Company’s Knowledge, there exist no contract circumstances or commitment facts that with the passage of time, the giving of notice or both would reasonably be expected to cause a violation, breach or default under, any of the Real Property Leases, the Existing Purchase Agreement or the Contracts required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.112.9(a) or Schedule 2.10(a) (such Real Property Leases, Existing Purchase Agreement and Contracts collectively, the “Material Contracts”), which violation, breach or default would reasonably be expected to result in a material liability to the Company and its Subsidiaries. To the Company’s Knowledge, no other Person has violated or breached, or is in default under, any Material Contract. No event has occurred and is continuing that will permit termination, modification or acceleration of such Material Contract. With respect to each Material Contract: (i) such Material Contract is legal, valid, binding, enforceable, free and clear of any Lien (other than Permitted Liens), and in full force and effect on identical terms as set forth in the copies provided to Purchaser (iv) HI including, in the event Purchaser has no knowledge been provided with any form Material Contracts or incomplete copies of any material breach Material Contracts, on identical terms as set forth in any supplement to or anticipated material breach by summary thereof that has been provided to Purchaser, as applicable); and (ii) neither the Company nor its Subsidiaries nor, to the Company’s Knowledge, any party other party(ies) thereto, have repudiated or threatened in writing to repudiate any contract specific on Schedule 5.11. provision of such Material Contract, and there is no dispute pending or, to the Company’s Knowledge, threatened in writing under any such Material Contract. The copies of the Material Contracts (ctogether with any supplement to or summary thereof) HI has provided the Investor with a made available to Purchaser are true and correct copy of complete in all written contracts which are referred to on Schedule 5.11 which have been requested by Investors, together with all amendments, waivers or other changes theretomaterial respects.

Appears in 1 contract

Samples: Merger Agreement (Darden Restaurants Inc)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on Schedule 3.11(a) or Schedule 3.14(a), the attached Schedule 5.11, HI Company is not a party party, or subject, to or bound by, whether written or oral, any: : (i) collective bargaining agreement relating to any completed or contract with any labor unionpending business acquisition or divestiture since January 1, whether formal or informal; 2008; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan; (iii) stock option or similar plan; (iv) contract (I) for the employment of any officer, individual employee or group other person, (II) providing for the payment of employees any cash or other person on a full-timecompensation or benefits upon the consummation of the transactions contemplated hereby, part-time or consulting basis (III) that provides severance or other benefits for any person; (v) agreement under which the Company or any severance agreements; of its Subsidiaries created, incurred or assumed any Indebtedness (iiiincluding any conditional sales agreement, sale-leaseback or capitalized lease) agreement or indenture relating to the borrowing of money mortgaging, pledging or to otherwise granting or placing a Lien on any portion of any of the assets of HI; Company's assets, other than as identified in Schedule 3.20; (iv) agreements with respects to the lending or investing of funds; (vvi) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of business; Indebtedness; (vii) lease or agreement under which HI it is lessee of, of or holds or operates, operates any personal property owned by any other party Person, for which the annual rental exceeds $50,000; 15,000; (viii) lease or agreement under which HI it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which the annual rental exceeds $50,000; 10,000; (ix) contract or group of related contracts with the same party for the purchase or sale by the Company of raw materials, commodities, supplies, products or other personal property or for services, under which the furnishing or receipt undelivered balance of such products and services which either calls for performance over has a period of more than one year and involves a sum purchase price in excess of $50,000 per year; (x) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits it from freely engaging in business anywhere 250,000 in the world; or aggregate (xiii) any other agreement material to HI not than purchase orders and transportation contracts entered into in the ordinary course of business); (x) contract or group of related contracts with the same party for the sale by the Company of products or services under which the undelivered balance of such products or services has a sales price in excess of $250,000 in the aggregate (other than sales orders and transportation contracts entered into in the ordinary course of business); (xi) any other contract, lease or agreement that cannot be canceled by the Company without penalty or further payment or obligation and without more than thirty (30) days' notice and with remaining fixed payments in excess of $100,000 in the aggregate; (xii) agreement containing covenants that in any way purport to restrict the right of the Company to engage in its current line of business, engage in any line of business, compete with any Person, or solicit customers; (xiii) hedging arrangement or forward, swap, derivatives or futures contract; (xiv) fuel purchasing contract; (xv) joint venture, partnership, franchise, joint marketing agreement or any other similar contract or agreement (including sharing of profits, losses, costs or liabilities by the Company or any Subsidiary thereof with any other Person); (xvi) material licensing agreement or other material contract or agreement with respect to Intellectual Property, including material contracts or agreements with current or former employees, consultants or contractors regarding the appropriation or non-disclosure of any Intellectual Property; (xvii) agreement under which the Company or any Subsidiary thereof has made loans or advances to any other Person, and such advances or loans remain outstanding, except advancement of reimbursable ordinary and necessary business expenses made to directors, officers, employees and independent contractors of the Company or any Subsidiary thereof in the ordinary course of business; (xviii) contract or agreement with any consultant or employee or any current or former officer, director, stockholder or Affiliate of the Company or any Subsidiary thereof; (xix) settlement, conciliation or similar agreement, the performance of which will involve payment after the date of this Agreement of consideration in excess of $100,000 or governmental monitoring, consent decree or reporting responsibilities; (xx) any contract or agreement, not otherwise covered by the foregoing, that is otherwise material to the Company and its Subsidiaries, taken as a whole; or (xxi) any amendment, supplement and modification (whether oral or written) in respect of any of the foregoing. (b) Except as specifically contemplated by this AgreementThe Company has made available to Buyer a true, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI has performed in all material respects all correct and complete copy of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract each written agreement set forth on Schedule 5.113.11(a) or Schedule 3.14(a), including all modifications and amendments thereto, and has made available to Buyer a true, correct and complete written summary of each oral agreement listed on Schedule 3.11(a) or Schedule 3.14(a). With respect to each agreement set forth on Schedule 3.11(a) or Schedule 3.14(a), such agreement: (i) is valid, binding and in full force and effect in all material respects; (ii) will remain unmodified and in full force and effect immediately after the Closing without any right on the part of any counterparty, including with the passage of time or notice, or both, to terminate, modify or impose any penalty as a result of the transactions contemplated hereby; (iii) is and will remain, including with the passage of time or notice, or both, immediately after the Closing enforceable by the Company in accordance with its respective terms; and (iv) HI has no knowledge of neither the Company, nor, to the Sellers’ Knowledge, any other party, is in material breach or anticipated material breach by default under such agreement. The Company has not received any written notice (or to the Sellers' Knowledge, any other notice) of the intention of any party to terminate any contract specific agreement listed on Schedule 5.113.11(a). (c) HI has provided Schedule 3.11(c) sets forth a list of the Investor transportation contracts with a true the Company's ten (10) largest customers (by consolidated revenue) for the first six (6) months of 2013, true, correct and correct copy complete copies of which, including all written contracts which are referred to on Schedule 5.11 which modifications and amendments thereto, have been requested made available to Buyer (collectively, "Customer Contracts"), and neither the Company nor, to the Sellers’ Knowledge, any other party, is in material breach or default under such contract. Other than customary notice to the Company that the Company must bid to continue to provide services to a customer as part of the customer’s normal bid cycles, the Company has not received notice from any of the following customers or their Affiliates that such customer or its Affiliates intends to terminate, substantially modify, fail to renew, or reduce volumes substantially: Georgia Pacific, General Xxxxx, Walmart Stores, Inc., Home Depot, Pepsico, Unilever, Xxxxxxx USA Inc., Lowes, Xxxxxx Western Express, Costco Wholesale, and Target Stores. (d) Schedule 3.11(d) sets forth a list of the contracts with the Company's ten largest vendors or suppliers (by Investorsconsolidated expenses) for the first six (6) months of 2013, together with true, correct and complete copies of which, including all amendmentsmodifications and amendments thereto, waivers have been made available to Buyer (collectively, "Vendor Contracts"), and neither the Company nor, to the Sellers’ Knowledge, any other party, is in material breach or default under such contract. The Company has not received written notice (or to Sellers' Knowledge, any other changes theretonotice) from any vendor that such vendor intends to terminate, substantially modify, fail to renew or reduce volumes substantially under any such Vendor Contract.

Appears in 1 contract

Samples: Stock Purchase Agreement (Heartland Express Inc)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on Schedule 3.10(a) and except for agreements entered into by any Group Company after the attached Schedule 5.11date hereof in accordance with Section 5.01, HI no Group Company is not a party to or bound by, whether written or oralnor are any of the Assets subject to, any: : (i) collective bargaining agreement or contract with any labor union, whether formal or informal; (ii) contract for the employment of any officer, individual employee or group of employees or other person on a full-time, part-time or consulting basis or any severance agreements; (iii) agreement Contract or indenture relating to Indebtedness (including Indebtedness of the borrowing Group Companies or in respect of money which any Group Company is an obligee) or any letters of credit or similar instruments issued for the account of any Group Company or to mortgaging, pledging or otherwise placing a Lien on any portion of the assets of HI; the Group Companies; (iv) agreements with respects to the lending or investing of funds; (vii) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; guaranty; (vi) license or royalty agreements except those entered into in the ordinary course of business; (viiiii) lease or agreement Contract under which HI it is lessee oflessee, or holds or operates, operates any personal property or real property owned by any other party party, for which the annual rental exceeds $50,000; ; (viiiiv) lease or agreement Contract under which HI it is lessor of or permits any third party to hold or operate any property, personal property or real or personal, owned or controlled by it property for which the annual rental exceeds $50,000; ; (ixv) contract Contract or group of related contracts Contracts with any Specified Customer, Specified Vendor or Specified Reseller; (vi) Contract relating to any business acquisition, or material acquisition of the same capital stock or assets of another Person, completed or terminated by any Group Company within the last five (5) years or that is currently pending; (vii) license or royalty agreement relating to the use of any third party Intellectual Property that provides for annual payments by a Group Company in excess of $75,000 during the trailing twelve (12) month period ending on the date of the Latest Balance Sheet (other than (A) non-disclosure agreements entered into in the Ordinary Course of Business, (B) intercompany agreements between any Group Companies, and (C) agreements for commercially available software); (viii) that contains any revenue sharing or profit sharing provision; (ix) other than purchase and sale orders received by the Group Companies in the Ordinary Course of Business, any contractual obligation (or group of related contractual obligations) for the purchase or sale of inventory, raw materials, commodities, supplies, products goods, products, equipment or other personal property property, in each case, with any Specified Customer or for the furnishing or receipt of services which either calls for performance over a period of more than one year and involves a sum in excess of $50,000 per yearSpecified Vendor; or (x) contract relating to Contract that (A) restricts the distributionCompany or a Subsidiary from engaging in any line of business, developing, marketing or sales of its distributing products or services or obligates the Company or a Subsidiary not to compete with another Person or in any geographic area or during any period of time or that would otherwise limit the freedom of Parent or its Affiliates (including contracts to provide advertising allowances or promotional servicesthe Surviving Company) involving more than $50,000 per year; (xi) franchise agreementsfrom engaging in any line of business after the Effective Time, (xiiB) contract which prohibits it from freely engaging in business anywhere contains exclusivity obligations or restrictions binding on the Company or any of the Subsidiaries or that would be binding on Parent or any of its Affiliates (including the Surviving Company) after the Effective Time, (C) contains any “most favored nation” provision or grants to any Person a right of first refusal, a right of first refusal, right of first offer or an option to purchase, acquire, sell or dispose of any Assets (other than inventory in the world; Ordinary Course of Business) or (xiiiD) prohibits the Company or any of the Subsidiaries from hiring or soliciting for hire any group of employees or customers other agreement material than, with respect to HI not any Contract that prohibits the Company or any of the Subsidiaries from hiring or soliciting for hire any group of employees, as may be entered into in the ordinary course Ordinary Course of businessBusiness between any such Group Company and any vendor, independent contractor or placement agency to the applicable Group Company (which such prohibition applies to the Group Companies only, and not Affiliates of the Group Companies); (xi) collective bargaining agreement with respect to its employees; (xii) Contract relating to any interest rate, foreign exchange, derivatives or hedging transaction; (xiii) Contract that contains any indemnification rights or obligations, or credit support relating to such indemnification rights or obligations, other than any of such indemnification rights or obligations incurred in the Ordinary Course of Business; (xiv) Contract with any U.S federal Governmental Entity; (xv) Contract pursuant to which the Company or any of the Subsidiaries has an obligation to make an investment in or loan to any other Person; (xvi) partnership, joint venture, limited liability company or other similar agreements or arrangements (including any agreement providing for joint research, development or marketing); and (xvii) settlement agreements entered into within the past three (3) years (other than transition agreements with employees of any the Group Companies entered into the Ordinary Course of Business). (b) Except as specifically contemplated by this AgreementThe Parent either has been supplied with, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30given access to, 1999, (ii) HI has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11. (c) HI has provided the Investor with a true and correct copy of all written contracts which Contracts that are referred to on Schedule 5.11 which have been requested by Investors3.10(a) (collectively, together with all amendmentsthe “Material Contracts”). Each Material Contract is in full force and effect and is a valid and binding obligation of, waivers or and enforceable against, the Group Company that is a party thereto and, to the knowledge of the Company, is a valid and binding obligation of, and enforceable against, each other changes party thereto. (c) No Group Company has in any material respect, violated or breached, or committed any default under (or is alleged to be in default or breach in any material respect under), any Material Contract. To the knowledge of the Company, no other Person has, in any material respect violated or breached, or committed any default under (or is alleged to be in default or breach in any material respect under), any Material Contract. No event or circumstance has occurred and is continuing through any Group Company’s actions or inactions that would result in a material violation or breach of any of the provisions of any Material Contract.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Nasdaq, Inc.)

Contracts and Commitments. (a) Except as specifically expressly contemplated by this Agreement and except or as set forth on the attached Schedule 5.11Contracts Schedule, HI neither the Company nor any of its Subsidiaries is not a party to or bound by, whether by any written or oral, any: : (i) pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, whether formal or informal; severance agreements, programs, policies or arrangements; (ii) contract for the employment of any officer, individual employee or group of employees officer or other person employee on a full-time, part-time time, consulting or consulting other basis or contract relating to loans to officers, directors or Affiliates or contract or arrangement with any severance agreements; Affiliate; (iii) contract under which the Company or any of its Subsidiaries has advanced or loaned any other Person amounts in the aggregate exceeding $50,000; (iv) agreement or indenture relating to the borrowing of borrowed money or to other Indebtedness or the mortgaging, pledging or otherwise placing a Lien on any material asset or material group of assets of the assets Company or any of HI; (iv) agreements with respects to the lending or investing of funds; its Subsidiaries; (v) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; Guaranty; (vi) license lease or royalty agreements agreement under which the Company or any of its Subsidiaries is lessee of or holds or operates any property, real or personal, owned by any other party, except those entered into in for any lease of real or personal property under which the ordinary course of business; aggregate annual rental payments do not exceed $50,000; (vii) lease or agreement under which HI is lessee of, the Company or holds or operates, any personal property owned by any other party for which annual rental exceeds $50,000; (viii) lease or agreement under which HI of its Subsidiaries is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which annual rental exceeds $50,000; the Company or any of its Subsidiaries; (ixviii) contract or group of related contracts with the same party for or group of affiliated parties, the purchase or sale performance of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance over a period of more than one year and involves a sum consideration in excess of $50,000 per year; in the Company’s fiscal year ended September 30, 2003, or in the Company’s current fiscal year to date, other than purchase and sales orders incurred in the ordinary course of business; (ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) which involves consideration in excess of $50,000 in the Company’s fiscal year ended September 30, 2003, or in the Company’s current fiscal year to date; (x) contract relating to agreement with a term of more than six months which is not terminable by the distribution, marketing Company or sales any of its products or services (including contracts to provide advertising allowances or promotional services) involving more Subsidiaries upon less than 30 days’ notice without penalty and which involves consideration in excess of $50,000 per year; in the Company’s fiscal year ended September 30, 2003, or in the Company’s current fiscal year to date; (xi) franchise agreementscontract regarding voting, transfer or other arrangements related to the Company’s capital stock or warrants, options or other rights to acquire any of the Company’s capital stock; (xii) contract which prohibits or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or or (xiii) any other agreement material to HI not entered into which involves consideration in excess of $50,000 in the ordinary course of businessCompany’s fiscal year ended September 30, 2003, or in the Company’s current fiscal year to date. (b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on the Contracts Schedule (the “Material Contracts”) are valid, binding and enforceable against the Company and, to the Company’s Knowledge, against all other parties thereto in accordance with their respective terms and, to the Company’s Knowledge, shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby. Except as specifically contemplated by this Agreement, or disclosed set forth on Schedule 5.11the Contracts Schedule, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by each of the other party since June 30, 1999, (ii) HI Company and its Subsidiaries has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, it and is not in material default under or in breach of nor in receipt of any written claim of default or breach under any contract Material Contract; (ii) no event has occurred which with the passage of time or commitment required to be disclosed on the Schedule 5.11giving of notice or both would result in a default, breach or event of noncompliance by the Company or any of its Subsidiaries under any Material Contract; (iii) HI neither the Company nor any of its Subsidiaries has no any present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, all such obligations under Material Contracts; and (iv) HI the Company has no knowledge Knowledge of any material breach or anticipated material breach by any party the other parties to any contract specific on Schedule 5.11Material Contract. (c) HI has provided the Investor with a true and correct copy of all written contracts which are referred to on Schedule 5.11 which have been requested by Investors, together with all amendments, waivers or other changes thereto.

Appears in 1 contract

Samples: Merger Agreement (Epiq Systems Inc)

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Contracts and Commitments. (a) Except as specifically expressly contemplated by this Agreement and except or as set forth on the attached Schedule 5.11Contracts Schedule, HI and other than franchise agreements and store lease agreements (which the parties agree need not be listed on the Contracts Schedule) neither the Company nor any of its Subsidiaries is not a party to or bound by, whether by any written or oral, any: : (i) Contract with any vendor involving annual consideration in the aggregate in excess of $100,000. (ii) Contract with any customer involving annual consideration in the aggregate in excess of $200,000. (iii) pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, whether formal or informal; severance agreements, programs, policies or arrangements; (iiiv) contract for relating to (A) loans to officers, directors or Affiliates (other than inter-company debt among the Company and a Subsidiary or between Subsidiaries of the Company), or (B) employment of (or consulting arrangement with) any officer, individual executive officer or any other employee or group of employees or other person on a full-time, part-time or consulting basis consultant earning more than $150,000 per year; (v) contract under which the Company or any severance agreements; of its Subsidiaries has advanced or loaned any other Person amounts in the aggregate exceeding $100,000; (iiivi) agreement or indenture relating to the borrowing of borrowed money or to other Indebtedness or the mortgaging, pledging or otherwise placing a Lien on any material asset or group of assets of the assets Company or any of HI; (iv) agreements with respects to the lending or investing of funds; (v) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of business; its Subsidiaries; (vii) lease or agreement under which HI is lessee of, or holds or operates, any personal property owned by any other party for which annual rental exceeds $50,000; Guaranty; (viii) lease or agreement under which HI the Company or any of its Subsidiaries is lessor lessee of or permits any third party to hold holds or operate operates any property, real or personal, owned by any other party, except for any lease of real or controlled by it for personal property under which the aggregate annual rental exceeds payments do not exceed $50,000; 200,000; (ix) contract contracts or group agreements which involve any exclusivity, requirements clauses or similar right or obligation of related contracts any party thereto (including without limitation territorial exclusivity); (x) agreement with the same party for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance over a period term of more than one year six months which is not terminable by the Company or any of its Subsidiaries upon less than thirty (30) days’ notice without penalty and involves a sum consideration in excess of $50,000 per year; (x) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; 100,000 annually; (xi) franchise agreements, (xii) contract which prohibits it or agreement prohibiting the Company or the Company Subsidiaries from freely engaging in any business or competing anywhere in the world; or or (xiiixii) any other agreement which is material to HI not entered into its operations and business prospects or involves a consideration in the ordinary course excess of business$100,000 annually. (b) Except as specifically contemplated by this AgreementTo the knowledge of the Company, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by each of the other party since June 30, 1999, (ii) HI Company and its Subsidiaries has performed in all material respects all of the obligations required to be performed by HI it in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, all material respects and is not in material default under or in material breach of nor in receipt of any claim of default or breach under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11the Contracts Schedule. (c) HI has provided the Investor with a true and correct copy of all written contracts which are referred to on Schedule 5.11 which have been requested by Investors, together with all amendments, waivers or other changes thereto.

Appears in 1 contract

Samples: Stock Purchase Agreement (Regis Corp)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set Set forth on the attached Schedule 5.11, HI 4.09 is not a party to list of all binding agreements or bound by, whether contracts (written or oral, any) of the following types to which any Xxxxxxx’x Company is party or by which any Xxxxxxx’x Company is bound: (i) purchase agreements to any completed business acquisition or divestiture by any Xxxxxxx’x Companies within the previous two (2) years; (ii) collective bargaining agreement agreements or contract contracts with any labor union, whether formal or informal; (iiiii) contract bonus, pension, profit sharing, retirement, severance or other forms of deferred compensation plan, other than as described in Section 4.13 or the schedules relating thereto; (iv) contracts for the employment of any officer, individual employee or group of employees or other person on a full-time, part-time or consulting basis or contracts with any severance officer, employee or director (including confidentiality agreements, non-compete agreements); (v) sales representative or distributor agreements; (iiivi) agreement agreements or indenture indentures relating to the borrowing of money (including those related to the Indebtedness) or to mortgaging, pledging or otherwise placing a Lien on any portion of the assets of HIany Xxxxxxx’x Company’s assets, other than Permitted Liens; (ivvii) agreements with respects to the lending or investing of funds; (v) guaranty guarantees of any obligation for borrowed money or otherwise, other than endorsements made for collectionmaterial guaranty; (viviii) license leases or royalty agreements except those entered into in the ordinary course of business; (vii) lease or agreement under which HI it is lessee of, or holds or operates, operates any personal property owned by any other party party, for which the annual rental exceeds $50,000; (viiiix) lease leases or agreement agreements under which HI it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which the annual rental exceeds $50,000; (ixx) contract contracts or group of related contracts with the same party for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for services, under which the furnishing or receipt undelivered balance of such products and services which either calls for performance over has a period of more than one year and involves a sum selling price in excess of $50,000 per year; (x) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more other than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits it from freely engaging in business anywhere in the world; or (xiii) any other agreement material to HI not purchase orders entered into in the ordinary course of business); (xi) contracts or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $50,000 (other than purchase orders entered into in the ordinary course of business); (xii) contracts relating to the purchase by any employee of any Xxxxxxx’x Company or any capital stock of the Xxxxxxx’x Companies; (xiii) contracts or agreements related to the payment of any bonuses or incentives, to any employee of the Xxxxxxx’x Companies in connection with the sale of any Xxxxxxx’x Company; (xiv) all commitments from vendors to provide co-op allowances, volume allowances, defective product allowances or any other rebates or financial incentives in exchange for any Xxxxxxx’x Company doing business with such vendor; or (xv) contracts continuing over a period of more than six (6) months from the date hereof not terminable by any of the Xxxxxxx’x Companies on 30 days or less notice without monetary penalty. (b) Except as specifically contemplated by this Agreement, The Company has delivered or disclosed on Schedule 5.11, (i) no contract or commitment required made available to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11. (c) HI has provided the Investor with Buyer a true and correct copy of all contracts (or, in the case of an oral contract, a written contracts which are referred description satisfactory to Buyer of the terms and conditions thereof) required to be disclosed on Schedule 5.11 which have been requested by Investors4.09, together with all amendments, waivers or other changes thereto. (c) Each of the Xxxxxxx’x Companies has performed all material obligations required to be performed, and no Xxxxxxx’x Company is in material default, under any contract required to be listed on Schedule 4.09. (d) All of the contracts required to be disclosed on Schedule 4.09 are in full force and effect and are legal, valid and binding obligations of one or more of the Xxxxxxx’x Companies.

Appears in 1 contract

Samples: Securities Purchase Agreement (Gander Mountain Co)

Contracts and Commitments. (a) Except as specifically filed as an exhibit to Seller’s SEC Reports, and except as contemplated by this Agreement and except as set forth Agreement, neither Seller, nor the Seller Subsidiaries, nor the entities listed on the attached Schedule 5.11, HI 3.1(b) is not a party to or bound byby any oral or written contract, whether written obligation or oral, any: commitment of any type in any of the following categories: (i) collective bargaining agreement agreements or contract arrangements that contain severance pay, understandings with any labor unionrespect to tax arrangements, whether formal understandings with respect to expatriate benefits, or informal; post-employment liabilities or obligations; (ii) contract for agreements or plans under which benefits will be increased or accelerated by the employment occurrence of any officerof the transactions contemplated by this Agreement, individual employee or group under which the value of employees or other person the benefits will be calculated on a full-time, part-time or consulting the basis or of any severance agreements; of the transactions contemplated by this Agreement; (iii) agreement agreements, contracts or indenture commitments currently in force relating to the borrowing disposition or acquisition of money or to placing a Lien on any of the assets of HI; (iv) agreements with respects to the lending or investing of funds; (v) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of business; , or relating to an ownership interest in any corporation, partnership, joint venture or other business enterprise; (iv) agreements, contracts or commitments for the purchase of materials, supplies or equipment, under which the aggregate payments for the past 12 months exceeded $100,000, which are with sole or single source suppliers; (v) guarantees or other agreements, contracts or commitments under which Seller or any of the Seller Subsidiaries is absolutely or contingently liable for (A) the performance of any other person, firm or corporation (other than Seller or the Seller Subsidiaries), or (B) the whole or any part of the indebtedness or liabilities of any other person, firm or corporation (other than Seller or the Seller Subsidiaries); (vi) powers of attorney authorizing the incurrence of a material obligation on the part of Seller or the Seller Subsidiaries; (vii) lease agreements, contracts or agreement under commitments which HI is lessee oflimit or restrict (A) where Seller or any of the Seller Subsidiaries may conduct business, (B) the type or lines of business (current or future) in which they may engage, or holds (C) any acquisition of assets or operates, stock (tangible or intangible) by Seller or any personal property owned by any other party for which annual rental exceeds $50,000; of the Seller Subsidiaries; (viii) lease agreements, contracts or agreement commitments, under which HI is lessor the aggregate payments or receipts for the past 12 months exceeded $100,000, containing any agreement with respect to a change of control of Seller or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which annual rental exceeds $50,000; of the Seller Subsidiaries; (ix) contract agreements, contracts or group of related contracts with the same party commitments for the purchase borrowing or sale lending of raw materialsmoney, commodities, supplies, products or other personal property the availability of credit (except credit extended by Seller or for any of the furnishing or receipt of services which either calls for performance over a period of more than one year and involves a sum in excess of $50,000 per year; (x) contract relating Seller Subsidiaries to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits it from freely engaging in business anywhere in the world; or (xiii) any other agreement material to HI not entered into customers in the ordinary course of businessbusiness and consistent with past practice); (x) any hedging, option, derivative or other similar transaction and any foreign exchange position or contract for the exchange of currency; or (xi) any agreement, contract or commitment otherwise required to be filed as an exhibit to a periodic report under the Exchange Act, as provided by Rule 601 of Regulation S-K promulgated under the Exchange Act. Each contract, agreement or commitment of the type described in this Section 3.15 is referred to herein as a “Seller Contract. (b) Except as specifically contemplated by this AgreementNeither Seller nor any of the Seller Subsidiaries, nor to the knowledge of Seller any other party to a Seller Contract, has breached, violated or defaulted under, or disclosed on Schedule 5.11received notice that it has breached, violated or defaulted under, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30nor does there exist any condition under which, 1999, (ii) HI has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts passage of time or commitments required the giving of notice or both, could reasonably be expected to cause such a breach, violation or default under), any Seller Contract, other than any breaches, violations or defaults which have not had, or could not reasonably be disclosed on expected to have, individually or in the Schedule 5.11aggregate, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11a Seller Material Adverse Effect. (c) HI Each Seller Contract is a valid, binding and enforceable obligation of Seller and to the knowledge of Seller, of the other party or parties thereto, in accordance with its terms, and in full force and effect, except where the failure to be valid, binding, enforceable and in full force and effect has provided not had, or could not reasonably be expected to have, individually or in the Investor with aggregate, a true Seller Material Adverse Effect and correct to the extent enforcement may be limited by applicable bankruptcy, insolvency, moratorium or other laws affecting the enforcement of creditors’ rights governing or by general principles of equity. (d) An accurate and complete copy of all written contracts which are referred each Seller Contract has been made available (including via EXXXX) to on Schedule 5.11 which have been requested by Investors, together with all amendments, waivers or other changes theretoBuyer.

Appears in 1 contract

Samples: Merger Agreement (Secure Computing Corp)

Contracts and Commitments. (a) Except as specifically Schedule 3.15(a) of the Disclosure Schedule sets forth each of the following types of Contracts currently in force pursuant to which any of A2iA and its Subsidiaries is a party or is bound (each a “Material Contract”): (i) any Contract that provides for post-employment or post-consulting liabilities or obligations, including severance pay other than obligations associated with any non-compete undertaking (A) the enforcement of which can be waived by A2iA or its Subsidiary at its exclusive election and (B) for which a waiver by A2iA or its Subsidiary will result in avoidance of such obligation; (ii) any Contract or A2iA Employee Plan under which payments or obligations owed to any employee of A2iA or any of its Subsidiaries will be increased, accelerated or vested by the occurrence (whether alone or in conjunction with any other event) of any of the transactions contemplated by this Agreement and except as set forth or under which the value of the payments or obligations will be calculated on the attached Schedule 5.11, HI is not a party to or bound bybasis of any of the transactions contemplated by this Agreement, whether written pursuant to a change in control or oral, any: (i) collective bargaining agreement or contract with any labor union, whether formal or informal; (ii) contract for the employment of any officer, individual employee or group of employees or other person on a full-time, part-time or consulting basis or any severance agreementsotherwise; (iii) agreement any collective bargaining agreements, including the CBA, or indenture relating to the borrowing other Contract with any labor union or similar Representative of money employees of A2iA or to placing a Lien on any of the assets of HIits Subsidiaries; (iv) agreements with respects any Contract relating to the lending disposition or investing acquisition of funds; (v) guaranty of any obligation for borrowed money or otherwiseassets, in each case other than endorsements made for collection; (vi) license or royalty agreements except those entered into inventory sold in the ordinary course of businessbusiness and consistent with past practice; (v) any Contract relating to an ownership interest in any corporation, partnership, joint venture or other business enterprise or Person; (vi) any Contract for the purchase of materials, supplies, equipment or services (1) from a Related Party or (2) under which the aggregate payments made to one party or group of related parties during the past twelve (12) months exceeded, or for the following twelve (12) months is expected to exceed, €150,000; (vii) lease or agreement under which HI is lessee of, or holds or operates, any personal property owned by any other party for which annual rental exceeds $50,000Contract with a Material Supplier; (viii) lease or agreement under which HI is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which annual rental exceeds $50,000Contract with a Material Customer; (ix) contract any Contract relating to the acquisition, transfer or group development of related contracts any Intellectual Property or Intellectual Property Rights owned by A2iA or one of its Subsidiaries, incorporated into any of the A2iA Products or otherwise used in the conduct of the businesses of A2iA or any of its Subsidiaries other than (A) any intercompany Contract or (B) any employment Contract, including any Contracts with the same party for the purchase trainees or sale of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance over a period of more than one year and involves a sum in excess of $50,000 per yeartemporary workers; (x) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per yearany Outbound IP Licenses; (xi) franchise agreements, any Inbound IP Licenses; (xii) contract which prohibits it from freely engaging in business anywhere in any Contract relating to the worldguarantee (whether absolute or contingent) by A2iA or any of its Subsidiaries of (1) the performance of any other Person (other than A2iA or one of its Subsidiaries) or (2) the whole or any part of the indebtedness or liabilities of any other Person (other than A2iA or one of its Subsidiaries); or (xiii) any Contract containing an obligation to indemnify any officer, director, manager or agent of A2iA or any of its Subsidiaries other agreement material than obligations associated with any non-compete undertaking (A) the enforcement of which can be waived by A2iA or its Subsidiary at its exclusive election and (B) for which a waiver by A2iA or its Subsidiary will result in avoidance of such obligation; (xiv) any Contract which limits or restricts (1) where A2iA or any of its Subsidiaries may conduct business, (2) where A2iA or any of its Subsidiaries may use, exploit, assert or enforce any A2iA IP, (3) the type or lines of business in which A2iA or any of its Subsidiaries may engage or (4) any acquisition of assets or stock (tangible or intangible) by A2iA or any of its Subsidiaries; (xv) any Contract under which the aggregate payments or receipts for the past twelve (12) months exceeded, or for the following twelve (12) months is expected to HI exceed, €250,000 and that cannot entered into be terminated by A2iA or its applicable Subsidiary at will on less than ninety (90) days’ notice; (xvi) any Contract for the borrowing or lending of money, or the availability of credit (except credit extended by A2iA or any of its Subsidiaries to customers in the ordinary course of business. business and consistent with past practice); (bxvii) Except as specifically contemplated by this Agreementany Real Property Lease; (xviii) any Contract providing for any individual capital expenditure of €50,000 or more during any twelve (12) month period or capital expenditures of €150,000 or more, or disclosed on Schedule 5.11in the aggregate, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by over the other party since June 30, 1999, (ii) HI has performed in all material respects all life of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of Contract; (xix) any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant Contract relating to any contract set forth on Schedule 5.11hedging, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11. (c) HI has provided the Investor with a true and correct copy of all written contracts which are referred to on Schedule 5.11 which have been requested by Investorsoption, together with all amendments, waivers derivative or other changes thereto.similar transaction and any foreign exchange position or contract for the exchange of currency; and

Appears in 1 contract

Samples: Share Purchase Agreement

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on Schedule 2.7 hereto lists the attached Schedule 5.11, HI is not a party to or bound byfollowing agreements, whether written oral or oralwritten, anyto which the Company is a party, which are currently in effect, and which relate to the operation of the Company's business: (i) collective bargaining agreement or contract with any labor union; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan; (iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal; (iiiv) stock purchase or stock option plan; (v) contract for the employment of any officer, individual employee or group of employees or other person on a full-time, part-time or consulting basis or relating to severance pay for any severance agreementssuch person; (iiivi) confidentiality agreement; (vii) contract, agreement or understanding relating to the voting of the Company's capital stock or the election of directors; (viii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien lien on any of the assets of HIthe Company; (iv) agreements with respects to the lending or investing of funds; (vix) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of business; (viix) lease or agreement under which HI the Company is lessee of, or holds or operatesoperates any property, any personal property real or personal, owned by any other party party, for which the annual rental exceeds $50,00010,000; (viiixi) lease or agreement under which HI the Company is lessor of of, or permits any third party to hold or operate operate, any property, real or personal, owned or controlled by it for which the annual rental exceeds $50,00010,000; (ix) contract or group of related contracts with the same party for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance over a period of more than one year and involves a sum in excess of $50,000 per year; (x) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits it the Company from freely engaging in business anywhere in the world; or (xiii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Schedule 2.19(b) hereto; (xiv) contract or commitment for capital expenditures in excess of $10,000; (xv) agreement for the sale of any capital asset; (xvi) contracts, understandings, arrangements or commitments with respect to the acquisition and/or use by the Company of Intellectual Property of others or by others of Company Intellectual Property (as defined in Section 2.19 hereof); or (xvii) other agreement which is either material to HI the Company's business or was not entered into in the ordinary course of business. (b) Except as specifically contemplated by this Agreement, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI The Company has performed in all material respects all of the obligations required to be performed by HI them in connection with the contracts or commitments required to be disclosed on the in Schedule 5.11, 2.7 and is not in receipt of any claim of default under any contract or commitment required to be disclosed on under such caption; the Schedule 5.11, (iii) HI Company has no present expectation or intention of not fully performing any material obligation pursuant to any contract set forth on Schedule 5.11, or commitment required to be disclosed under such caption; and (iv) HI the Company has no knowledge Knowledge of any material breach or anticipated material breach by any other party to any contract specific on Schedule 5.11or commitment required to be disclosed under such caption. (c) HI has provided the Investor with a true and correct copy of all written contracts which are referred to on Schedule 5.11 which have been requested by Investors, together with all amendments, waivers or other changes thereto.

Appears in 1 contract

Samples: Merger Agreement (Equitex Inc)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set Schedule 2.11(a) sets forth on a list of the attached Schedule 5.11, HI is not a party to or bound byfollowing agreements, whether written oral or oralwritten, anyto which GETS, GETS Affiliates or their respective Predecessors are a party, which are currently in effect, and which relate to GETS, GETS Affiliates or any of their respective businesses: (i) collective bargaining agreement or contract with any labor union, whether formal or informal; (ii) contract contracts for the employment of any officerPerson that will be binding on GETS after the Initial Closing Date or relating to severance pay for any Person; (ii) confidentiality agreements, individual employee or group of employees or other person on a full-time, part-time or consulting basis or any severance agreements; (iii) agreement contracts, agreements or indenture understandings relating to an ownership interest in GETS or the election of officers and/or a manager of GETS that will be binding on GETS after the Initial Closing Date; (iv) agreements or indentures relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien on any of the assets of HI; (iv) agreements with respects to the lending or investing of fundsGETS; (v) guaranty agreements of indemnification or guaranties of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license leases or royalty agreements except those entered into in the ordinary course of business; (vii) lease or agreement under which HI GETS or any GETS Affiliate is lessee of, or holds or operates, operates any personal property owned by any other party party, for which the annual rental exceeds $50,000; (vii) leases or agreements under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $50,000; (viii) lease contracts or agreement groups of related contracts with the same party for the purchase of products or services under which HI the undelivered balance of such products or services is lessor in excess of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which annual rental exceeds $50,00050,000 per annum; (ix) contract contracts or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $50,000; (x) contracts or groups of related contracts with the same party (other than any contracts or groups of related contracts for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance services) continuing over a period of more than one year six months from the date or dates thereof, not terminable by GETS or any GETS Affiliate on 30 days' or less notice without penalty and involves a sum involving more than $50,000; (xi) any agreements containing covenants to limit GETS's freedom to compete in any line of business in any geographic area; (xii) any dealer, distributor, sales representative, original equipment manufacturer, value added remarketer or other agreements for the distribution of GETS's products or services; (xiii) contracts or commitments for capital expenditures in excess of $50,000 per year50,000; (xxiv) contract any fidelity or surety bond or completion bond; (xv) any agreements, contracts or commitments outside the ordinary course of business relating to the disposition or acquisition of assets that are material to GETS or GETS Affiliates taken as a whole or any interest in any material business enterprise; (xvi) any purchase orders or contracts for the purchase of materials or services involving in excess of $50,000; (xvii) any distribution, joint marketing or sales development agreements involving in excess of its products $50,000; (xviii) any other agreements, contracts or services (including contracts to provide advertising allowances or promotional services) commitments involving more than $50,000 per year50,000; (xixix) franchise any agreement relating to any joint venture or strategic alliance to which GETS or GETS Affiliates or their respective properties are subject; (xx) any agreement, including without limitation any facilities leasing or sharing or employee leasing or sharing agreements, with any GETS Affiliate, including the Members, (xiixxi) contract which prohibits it from freely engaging in business anywhere in the world; settlement agreements, or (xiiixxii) any other agreement which is either material to HI GETS's business or was not entered into in the ordinary course of business. (b) Except as specifically contemplated by this Agreement, or disclosed set forth on Schedule 5.112.11(b), GETS and GETS Affiliates and their respective Predecessors (ias to any obligation the performance of which is binding on GETS) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI has have performed in all material respects all of the obligations required to be performed by HI them in connection with the contracts or commitments required to be disclosed set forth on the Schedule 5.112.11(a). Except as set forth on Schedule 2.11(b), and neither GETS nor any GETS Affiliate is not in receipt of any written claim of default or failure to perform under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI such schedule. Neither GETS nor any GETS Affiliate has no any present expectation or intention of not fully performing any obligation pursuant to any contract or commitment required to be disclosed on Schedule 2.11(a). GETS and the Members have no knowledge of any breach or anticipated breach by any other party to any contract or commitment required to be disclosed on Schedule 2.11(a) (c) Except as set forth on Schedule 5.112.11(c), and (iv) HI has no knowledge of any material breach or anticipated material breach by any party notices are required to be delivered to any Person under any contract specific on or commitment required to be disclosed under Schedule 5.112.11 (a) in connection with the execution, delivery and performance of this Agreement and the completion of the transactions contemplated by this Agreement. (cd) HI Except as set forth on Schedule 2.11(d), there are no contracts or commitments that contain provisions requiring termination in the event of a change of control or change in ownership of GETS or GETS Affiliates and/or in the event of a change in the Members or officers of GETS. (e) GETS has provided the Investor with specifically identified and made available to Pegasus a true and correct copy of all each written contracts which are referred to contract or commitment, and a description of each oral contract or commitment, set forth on Schedule 5.11 which have been requested by Investors2.11(e), together with all amendments, supplements, modifications, waivers or other changes thereto. (f) Except as set forth on Schedule 2.11(f), GETS and GETS Affiliates have no business contracts with any Governmental Entity, including any prime contractor of any Governmental Entity and any higher level subcontractor of a prime contractor of any Governmental Entity, and including any employees or agents thereof.

Appears in 1 contract

Samples: Purchase Agreement (Pegasus Solutions Inc)

Contracts and Commitments. (a) Except The Contracts Schedule sets forth a correct and complete list of the following Contracts as specifically contemplated by this Agreement and except as of the date hereof (the Contracts within any of the following categories whether or not set forth on such list, the “Company Contracts”) (other than any Contract set forth on the attached Employee Benefits Schedule 5.11and Insurance Schedule, HI is each of which are not a party to or bound by, whether written or oral, any: Company Contracts): (i) collective bargaining agreement or contract with any labor union, whether formal or informal; ; (ii) contract for the employment of any officerall bonds, individual employee notes, debentures, loan or group of employees credit agreements or loan commitments, indentures, mortgages, guarantees, pledges or other person on a full-time, part-time Contracts evidencing or consulting basis governing Indebtedness or any severance agreements; (iii) agreement or indenture relating to the borrowing of money or to placing a Lien on any of the assets of HI; assets; (iii) all exchange traded or over-the-counter swap, forward, future, option, cap, floor or collar financial Contracts, or any other interest rate or foreign currency protection Contract; (iv) all limited liability company agreements, partnership, joint venture or other similar agreements with respects to the lending or investing of funds; arrangements other than any such limited liability company, partnership or joint venture that is a wholly-owned Subsidiary; (v) guaranty of any obligation for borrowed money all leases or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of business; (vii) lease or agreement under which HI the Company or any of its Subsidiaries is lessee of, or holds or operates, operates any personal property owned by any other party party, for which the annual rental exceeds $50,000; 250,000; (viiivi) lease all leases or agreement other agreements under which HI the Company or any of its Subsidiaries is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which the annual rental exceeds $50,000; 250,000; (ixvii) contract all Contracts or group of related contracts Contracts with the same party for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for services, under which the furnishing or receipt undelivered balance of such products and services which either calls for performance over has a period of more than one year and involves a sum selling price in excess of $50,000 per year; 250,000; (viii) all Contracts or group of related Contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $250,000; (ix) all Contracts that purport to limit or restrict the Company or any of its Subsidiaries or its Affiliates from (A) engaging in any line of business or (B) competing with any Person or operating in any location; (x) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; all Contracts with Governmental Entities; (xi) franchise agreements, all Contracts for capital expenditures requiring the payment by the Company or any of its Subsidiaries of an amount in excess of $500,000 individually or $1,000,000 in the aggregate; (xii) contract which prohibits it from freely engaging in business anywhere in all Contracts granting to any Person (other than the world; Company or any of its Subsidiaries) an option or a first refusal, first-offer or similar preferential right to purchase or acquire any material assets of the Company or its Subsidiaries; (xiii) all Contracts with Material Customers that contain most favored nation or other similar provisions with any third party requiring that a third party be offered terms or concessions at least as favorable to those offered to one or more other agreement material to HI not Persons; (xiv) all Contracts entered into since March 31, 2004, or not yet consummated, involving the sale or purchase of substantially all of the assets or capital stock of any Person, or a merger, consolidation, business combination or similar extraordinary transaction; (xv) any acquisition Contract pursuant to which the Company or any of its Subsidiaries has “earn-out” or other contingent payment obligations; (xvi) all Contracts under which the Company or any of its Subsidiaries is the licensor or licensee of material Intellectual Property rights (except Contracts for commercially available off-the-shelf software); (xvii) all Contracts involving any resolution of settlement of any actual or threatened Action or other dispute with a value of greater than $1,000,000; (xviii) all Contracts (other than those described in subsections (i) through (xvii) of this Section 4.10(a)), in each case, involving annual consideration payable to or from the ordinary course Company or any of businessits Subsidiaries of an amount reasonably likely to exceed $1,000,000; and (xix) any Contract or commitment to enter into any one of the foregoing. (b) Correct and complete copies of all Company Contracts, including all amendments, modifications and supplements thereof, have been provided to the Purchaser. Each Company Contract is valid, binding and enforceable in accordance with its terms with respect to the Company or any of its Subsidiaries, as applicable, and to the knowledge of the Company, each other party to such Company Contracts. Except as specifically contemplated by this Agreement, or disclosed set forth on Schedule 5.11, the Contracts Schedule, (i) there is no contract existing default or commitment required breach of the Company or any of its Subsidiaries, as applicable, under any Company Contract, and to be disclosed on Schedule 5.11 has been breached or canceled the knowledge of the Company, there is no default by the any other party since June 30, 1999, to any Company Contract and (ii) HI has performed in all material respects all no counterparty to any Company Contract has, to the knowledge of the Company, threatened or intends not to fully perform its obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract Company Contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation terminate or intention of not fully performing seek to materially modify any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11Company Contract. (c) HI has provided the Investor with a true and correct copy of all written contracts which are referred to on Schedule 5.11 which have been requested by Investors, together with all amendments, waivers or other changes thereto.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Hillman Companies Inc)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on Section 5.15 of the attached Disclosure Schedule 5.11lists the following agreements, HI whether oral or written, to which the Company is not a party to or bound by, whether written or oral, any: and which are currently in effect: (i) collective bargaining agreement bonus, pension, profit sharing, retirement or contract with any labor unionother form of deferred compensation plan, other than as described in Section 5.20 of the Disclosure Schedule (or excluded by Section 5.20 from inclusion thereunder); (ii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal; , other than as described in Section 5.20 of the Disclosure Schedule (iior excluded by Section 5.20 from inclusion thereunder); (iii) stock purchase or stock option plan; (iv) contract for the employment of any officer, individual employee or group of employees or other person on a full-time, part-time or consulting basis or relating to severance pay for any severance agreements; such person; (iiiv) confidentiality agreement; (vi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien lien on any of the assets of HI; Assets; (iv) agreements with respects to the lending or investing of funds; (vvii) guaranty by it of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of business; (vii) lease or agreement under which HI is lessee of, or holds or operates, any personal property owned by any other party for which annual rental exceeds $50,000; ; (viii) lease or agreement under which HI it is lessee of, or holds or operates any property, real or personal, owned by any other party, for which the annual rental exceeds $1,000, other than as described in Section 5.11 of the Disclosure Schedule; (ix) lease or agreement under which it is lessor of of, or permits any third party to hold or operate operate, any property, real or personal, owned or controlled by it for which the annual rental exceeds $50,000; 1,000 other than as described in Section 5.11 of the Disclosure Schedule; (ixx) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices); (xi) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices); (xii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance services) continuing over a period of more than one year six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involves a sum in excess of $50,000 per year; (x) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; 1,000; (xixiii) franchise agreementscontract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company; (xiixiv) contract which prohibits it the Company from freely engaging in business anywhere in the world; (xv) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 5.16 of the Disclosure Schedule; (xvi) contract or commitment for capital expenditures in excess of $2,000; (xvii) agreement for the sale of any capital asset; (xviii) contract with any affiliate which in any way relates to the Company (other than for employment on customary terms); or or (xiiixix) any other agreement which is either material to HI the business of the Company or the transactions contemplated hereby or which was not entered into in the ordinary course of businessbusiness consistent with past practices. (b) Except as specifically contemplated by this Agreement, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI The Company has performed in all material respects all of the obligations required to be performed by HI it in connection with the contracts or commitments required to be disclosed on in Section 5.15 of the Disclosure Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI under such caption. The Company has no present expectation or intention of not fully performing any material obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no or commitment required to be disclosed under such caption. Neither the Company nor either of the Shareholders have any knowledge of any material breach or anticipated material breach by any other party to any contract specific on Schedule 5.11or commitment required to be disclosed in Section 5.15 of the Disclosure Schedule. (c) HI Prior to the date of this Agreement, the Company has provided the Investor with to Buyer a true and correct copy of all each written contracts which are contract or commitment, and a written description of each oral contract or commitment, referred to on Schedule 5.11 which have been requested by Investorsin Section 5.15 in the Disclosure Schedule, together with all amendments, waivers or other changes thereto. (d) To the extent the Company's interest in and benefits under all licenses, contracts and agreements are not assignable in accordance with Section 2.01(e) hereof, such non-assignability will not have a material adverse effect on the Business or the Assets transferred to Buyer pursuant to the terms of this Agreement.

Appears in 1 contract

Samples: Asset Purchase Agreement (Cyberoptics Corp)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as with regard to any Contracts or other agreements set forth on the attached Schedule 5.11Contracts Schedule, HI neither the Company nor any of its Subsidiaries is not a party to any of the following contracts, other agreements or bound by, whether written or oral, anyarrangements: (i) collective bargaining agreement or contract with any labor union, whether formal or informal; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 4.11 or the Disclosure Schedules relating thereto; (iii) stock purchase, stock option or similar plan; (iv) contract for the employment of any officer, individual employee or group of employees or other person individual service provider on a full-time, part-time or consulting basis or any severance agreementsproviding for base compensation in excess of $100,000 per annum; (iiiv) agreement or indenture Contract relating to the borrowing of money Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of HIthe Company or any of its Subsidiaries; (iv) agreements with respects to the lending or investing of funds; (vvi) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of businessmaterial guaranty; (vii) lease or agreement under which HI it is lessee of, or holds or operates, operates any personal property owned by any other party party, for which the annual rental exceeds $50,000; (viii) lease or agreement under which HI it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which the annual rental exceeds $50,000; (ix) contract or group of related contracts with the same party for the purchase of products or services, other than purchase orders entered into in the ordinary course of business, under which the undelivered balance of such products and services has a selling price in excess of $100,000 which cannot be cancelled by the Company or any of its Subsidiaries without penalty or without more than 90 days’ notice; (x) Contracts that (A) provide for any minimum purchase or payment requirement or contain a “take or pay” provision or (B) contains a “most-favored nation” or similar preferential pricing provision; (xi) Contract with a Material Supplier; (xii) contract or group of related contracts with the same party for the sale of raw materials, commodities, supplies, products or services, other personal property than purchase orders entered into in the ordinary course of business, under which the undelivered balance of such products or for the furnishing or receipt of services which either calls for performance over has a period of more than one year and involves a sum sales price in excess of $50,000 per yearwhich cannot be cancelled by the Company or any of its Subsidiaries without penalty or without more than 90 days’ notice; (xxiii) contract Contracts relating to the distributionacquisition, marketing sale or sales disposition of all or material portion of any assets or business of any other Person (whether by merger, sale of stock, sale of assets or otherwise), whether or not consummated (including any confidentiality agreements entered into with respect thereto) (A) within the last five (5) years or (B) that contain representations, warranties, covenants, indemnities or other obligations of the Company or any of its products Subsidiaries that are still in effect, including any outstanding “earn-outs”, contingent or services (including contracts to provide advertising allowances deferred purchase price payments or promotional services) involving more than $50,000 per yearsimilar contingent payment obligations; (xi) franchise agreements, (xiixiv) contract which materially prohibits it the Company or any of its Subsidiaries from freely engaging in business anywhere in the world; (xv) Contracts relating to any joint venture, partnership, strategic alliance or sharing of profits or losses with any Person, or any similar Contracts; (xiiixvi) Contracts that are a settlement, conciliation or similar agreement with any Governmental Body or pursuant to which the Company or any of its Subsidiaries will have any obligations after the date hereof; (xvii) contracts relating to the licensing of Intellectual Property by the Company or any of its Subsidiaries to a third party or by a third party to the Company or any of its Subsidiaries (other agreement material to HI not entered into than contracts for generally commercially available off-the-shelf software or contracts for Inbound Licenses granted in the ordinary course of business), in each case involving consideration in excess of $50,000 per annum; and (xviii) all agreements between or among the Company or any Subsidiary, on the one hand, and Seller or any of its Affiliates (other than the Company or any Subsidiary), on the other hand. (b) Except Seller has made available to the Purchaser a true, correct and complete copy of each Contract listed on the Contracts Schedule (or a true and correct summary of the material terms of any oral Contract listed on the Contracts Schedule). Each of the Contracts listed on the Contracts Schedule is valid and binding on the Company or its Subsidiary, is in full force and effect, neither the Company nor any of its Subsidiaries (as specifically contemplated by this Agreementapplicable) is in material default under any Contract listed on the Contracts Schedule, or disclosed on Schedule 5.11and, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the knowledge of Seller, the other party since June 30, 1999, (ii) HI has performed in all material respects all to each of the Contracts listed on the Contracts Schedule in not in material default thereunder. The Company and each of its Subsidiaries have performed all obligations required to be performed by HI it in connection with all material respects under the contracts or commitments required to be disclosed Contracts listed on the Schedule 5.11Contracts Schedule, except that the execution, delivery and is not performance of this Agreement by Seller and the consummation of the transactions contemplated hereby may conflict with, result in receipt a material breach of, require a notice under, constitute a material default under, result in a material violation of, give rise to a right of any claim termination, modification, cancellation, or result in the loss of default a right or benefit under any contract or commitment required to be disclosed certain of the Contracts listed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11Contracts Schedule. (c) HI has provided the Investor with a true and correct copy of all written contracts which are referred to on Schedule 5.11 which have been requested by Investors, together with all amendments, waivers or other changes thereto.

Appears in 1 contract

Samples: Stock Purchase Agreement (Fat Brands, Inc)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on the attached Schedule 5.11Contracts Schedule, HI neither the Company nor any of its Subsidiaries is not a party to or bound by, whether written or oral, any: (i) agreement relating to any material business acquisition by the Company or such Subsidiary within the last two years, (ii) collective bargaining agreement or contract with any labor union, whether formal (iii) written bonus, pension, profit sharing, retirement or informal; other form of deferred compensation plan, other than as described in Section 4.12 hereof or the schedules relating thereto, (iiiv) stock purchase, stock option or similar plan, (v) material contract for the employment of any officer, individual employee or group of employees or other person individual on a full-time, part-time or consulting basis or any severance agreements; basis, (iiivi) agreement or indenture relating to the borrowing of money (including agreements related to off-balance-sheet financings) or to mortgaging, pledging or otherwise placing a Lien (other than Permitted Liens) on any of the assets of HI; Company’s or any Subsidiary’s assets, (iv) agreements with respects to the lending or investing of funds; (vvii) guaranty of any obligation for borrowed money or otherwiseother material guaranty, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of business; (vii) lease or agreement under which HI is lessee of, or holds or operates, any personal property owned by any other party for which annual rental exceeds $50,000; (viii) lease or agreement under which HI it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $500,000, (ix) lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which the annual rental exceeds $50,000; 500,000, (ixx) contract or group of related contracts with the same party for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for services, under which the furnishing or receipt undelivered balance of such products and services which either calls for performance over has a period of more than one year and involves a sum selling price in excess of $50,000 per year; 2,000,000 (xother than purchase orders entered into in the ordinary course of business), (xi) contract relating to or group of related contracts with the distribution, marketing or sales same party for the sale of its products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000,000 (including contracts to provide advertising allowances or promotional services) involving more other than $50,000 per year; (xi) franchise agreementspurchase orders entered into in the ordinary course of business), (xii) contract which prohibits it the Company or any of its Subsidiaries from freely engaging in business anywhere in the world; or world (xiii) any other agreement material to HI not than confidentiality agreements entered into in the ordinary course of business), or (xiii) any agreement relating to any interest rate, currency, or commodity derivatives or hedging transaction. (b) Except as specifically contemplated by this AgreementBuyer either has been supplied with, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30given access to, 1999, (ii) HI has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11. (c) HI has provided the Investor with a true and correct copy of all written contracts which are referred to on Schedule 5.11 which have been requested by Investorsthe Contracts Schedule, together with all material amendments, waivers or other changes thereto. (c) To the Company’s knowledge, (i) neither the Company nor any Subsidiary is in default or other breach in any material respect under any contract listed on the Contracts Schedule, and (ii) the other party to each of the contracts listed on the Contracts Schedule is not in default or other material breach thereunder, and each such contract is in full force and effect.

Appears in 1 contract

Samples: Unit Purchase Agreement (Alliance Laundry Systems LLC)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on the "Contracts Schedule" attached Schedule 5.11hereto, HI neither the ------------------ Seller (with respect to the Residual Acquired Commercial Assets) nor any of the Acquired Companies is not a party to or bound by, whether written or oral, by any: : (i) collective bargaining agreement or contract with any labor unionunion or any bonus, pension, profit sharing, retirement or any other form of deferred compensation plan or any stock purchase, stock option, hospitalization insurance or similar plan or practice, whether formal or informal; ; (ii) contract for the employment of any officer, individual employee or group of employees or other person on a full-time, part-time or consulting basis or any severance agreements; providing annual compensation in excess of $150,000; (iii) change of control severance agreement or similar arrangement; (iv) agreement or indenture relating to the borrowing of money or other Indebtedness or to mortgaging, pledging or otherwise placing a Lien on any of its assets; (v) contract under which the assets Seller or any of HI; the Acquired Companies has advanced or loaned any other Person amounts in the aggregate exceeding $100,000, other than trade credit extended in the Ordinary Course of Business; (ivvi) agreements agreement with respects respect to the lending or investing of funds; ; (vvii) guaranty of any obligation for borrowed money or otherwiseobligation, other than endorsements made for collection; collection and guarantees of obligations of an Acquired Company pursuant to any Lease; (viviii) license management, consulting, advertising, marketing, promotion, technical services, advisory or royalty agreements except those entered into other contract or other similar arrangement relating to the design, marketing, promotion, management or operation of the Acquired Business involving payments in excess of $200,000 per year; (ix) outstanding powers of attorney executed on behalf of the ordinary course of business; Seller or any Acquired Company; (viix) lease or agreement under which HI it is lessee of, or holds or operates, any personal property owned by any other party Person calling for which annual rental exceeds payments in excess of $50,000; 100,000 annually; (viiixi) lease or agreement under which HI it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it and calling for payments in excess of $100,000 per year; (xii) any agreement or group of related agreements with the same Person for the purchase of products or services under which the annual rental exceeds expense of such products and services has a price in excess of $50,000200,000 (other than agreements with any independent consultant or employee of the Acquired Business who provides services for fees to customers of the Acquired Business (a "Consultant")); ---------- (ixxiii) contract or group of related contracts with the same party for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance continuing over a period of more than one year six months from the date or dates thereof, not terminable by it on 180 days or less notice without penalties and involves a sum in excess of $50,000 per year; (x) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; 250,000; (xixiv) franchise agreementsnon-competition or other, similar agreements imposing material restrictions on the ability of the Seller (xiias to the Acquired Business) contract which prohibits it from freely engaging in or any Acquired Company to conduct business anywhere in the world; or or (xiiixv) any other agreement material to HI the Acquired Business (whether or not entered into in the ordinary course Ordinary Course of businessBusiness). (b) The Contracts Schedule contains a complete and accurate ------------------ list of the contracts, agreements or other arrangements with the top twenty-five (25) customers of the Seller with respect to the Acquired Business and the Acquired Companies, with such top customers determined based upon annual revenues with respect to such customers for the fiscal year ended 1999. (c) Except as specifically contemplated by this Agreement, or disclosed on Schedule 5.11the Contracts Schedule, (i) no ------------------ contract on the Contracts Schedule and no other material contract or commitment required to be disclosed on Schedule 5.11 ------------------ has been materially breached or canceled by the other party since June 30, 1999and the Seller has no knowledge of any anticipated material breach by any other party to any contract set forth on the Contracts Schedule, (ii) HI no material customer or ------------------ material supplier has indicated in writing or, to the Seller's knowledge, orally to the Seller that it intends to stop or decrease the rate of business done with the Seller or any of the Acquired Companies (other than as a result of routine fluctuations that are customary in the Ordinary Course of Business), and no such material supplier has indicated in writing or orally that it desires to renegotiate its contract or current arrangement with the Seller or any of the Acquired Companies, (iii) the Seller and each of the Acquired Companies have performed in all material respects all of the material obligations required to be performed by HI them in connection with material contracts (including, but not limited to, all contracts set forth on the contracts Contracts Schedule) or commitments required to be disclosed on the Schedule 5.11and are not in material default (whereby such ------------------ default is continuing and has not been cured) under or in material breach of any material contract or commitment, and is not no event has occurred which, with the passage of time or the giving of notice or both, would result in receipt of any claim of such a continuing material default under any contract or commitment required to be disclosed on the Schedule 5.11material breach thereunder, (iiiiv) HI neither the Seller nor any of the Acquired Companies has no any present expectation or intention of not fully performing any material obligation pursuant to any material contract or commitment including, without limitation, any contract set forth on Schedule 5.11the Contracts Schedule, and (ivv) HI has no knowledge of any each material breach or anticipated material breach by any party to agreement including, ------------------ without limitation, any contract specific set forth on the Contracts Schedule 5.11is legal, ------------------ valid, binding, enforceable and in full force and effect and will continue as such immediately following the consummation of the transactions contemplated hereby. (cd) HI Except as set forth on the Contracts Schedule, the Seller has ------------------ provided the Investor Purchaser with a true true, correct, complete and correct accurate copy or description of all written contracts which are referred required to be disclosed on Schedule 5.11 which have been requested by Investorsthe Contracts Schedule, in each case together with all amendments, waivers or other ------------------ changes thereto.thereto (all of which are disclosed on the Contracts Schedule). ------------------

Appears in 1 contract

Samples: Purchase Agreement (Staffmark Inc)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on Schedule 2.11(a) or Schedule 2.14(a), none of the attached Schedule 5.11Companies is party, HI is not a party or subject, to or bound by, whether written or oral, any: : (i) collective bargaining agreement relating to any completed or contract with any labor unionpending business acquisition or divestiture since January 1, whether formal or informal; 2011; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan; (iii) stock option or similar plan; (iv) contract (I) for the employment of any officer, individual employee or group other person, (II) providing for the payment of employees any cash or other person on a full-timecompensation or benefits upon the consummation of the transactions contemplated hereby, part-time or consulting basis (III) that provides severance or other benefits for any severance agreements; person; (iiiv) agreement under which any of the Companies created, incurred or indenture relating to the borrowing of money assumed any Indebtedness (including any conditional sales agreement, sale-leaseback or to capitalized lease) or mortgaging, pledging or otherwise granting or placing a Lien on any portion of any of the assets of HI; Companies’ assets, other than as identified in Schedule 2.20; (iv) agreements with respects to the lending or investing of funds; (vvi) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of business; Indebtedness; (vii) lease or agreement under which HI it is lessee of, of or holds or operates, operates any personal property owned by any other party Person, for which the annual rental exceeds $50,000; ; (viii) lease or agreement under which HI it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which the annual rental exceeds $50,000; ; (ix) contract or group of related contracts with the same party for the purchase or sale by any of raw materials, commodities, supplies, the Companies of products or other personal property or for services, under which the furnishing or receipt undelivered balance of such products and services which either calls for performance over has a period of more than one year and involves a sum purchase price in excess of $50,000 per year; in the aggregate (other than purchase orders and transportation contracts entered into in the ordinary course of business); (x) contract relating to or group of related contracts with the distribution, marketing or sales same party for the sale by any of its the Companies of products or services under which the undelivered balance of such products or services has a sales price in excess of $50,000 in the aggregate (other than sales orders and transportation contracts entered into in the ordinary course of business); (xi) any other contract, lease or agreement, other than contracts for the purchase of tractors or trailers disclosed on Schedule 2.09(f), that cannot be canceled by a Company without penalty or further payment or obligation and without more than thirty (30) days’ notice and with remaining fixed payments in excess of $50,000 under any such contract; (xii) agreement containing covenants that in any way purport to restrict the right of any Company to engage in its current line of business, engage in any line of business, compete with any Person, or solicit customers, where such covenants, individually or in the aggregate, would be reasonably expected to have a Material Adverse Effect; (xiii) hedging arrangement or forward, swap, derivatives or futures contract; (xiv) intentionally omitted; (xv) joint venture, partnership, franchise, joint marketing agreement or any other similar contract or agreement (including sharing of profits, losses, costs or liabilities by any Company with any other Person); (xvi) material licensing agreement or other material contract or agreement with respect to Intellectual Property, including material contracts to provide advertising allowances or promotional services) involving more agreements with current or former employees, consultants or contractors regarding the appropriation or non-disclosure of any Intellectual Property, other than contracts with less than $50,000 per year; fixed payments remaining; (xixvii) franchise agreementsagreement under which any Company has made loans or advances to any other Person, and such advances or loans remain outstanding in an amount of greater than $15,000, except advancement of reimbursable ordinary and necessary business expenses made to directors, officers, employees and independent contractors (xiiincluding but not limited to advances to owner-operators for vehicle repairs) of any Company in the ordinary course of business; (xviii) contract which prohibits it from freely engaging in business anywhere or agreement with any consultant or employee or any current or former officer, director, shareholder or Affiliate of any Company other than employment agreements of Rxxx X. Xxxxxx and Sxxxx X. Xxxxxx (copies of such employment agreements for Rxxx X. Xxxxxx and Sxxxx X. Xxxxxx have been made available to Buyer in the world; Document Room as of September 30, 2014); (xix) settlement, excluding worker’s compensation matters, the performance of which will involve payment after the date of this Agreement of consideration in excess of $50,000 or governmental monitoring, consent decree or reporting responsibilities; (xiiixx) any other agreement contract or agreement, not otherwise covered by the foregoing, that is otherwise material to HI not the Companies, taken as a whole, except for contracts or agreements entered into in the ordinary course of business; or (xxi) any amendment, supplement and modification (whether oral or written) in respect of any of the foregoing other than amendments, supplements and modifications entered into in the ordinary course of business. (b) Except as specifically contemplated by this AgreementThe Companies have made available to Buyer a true, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI has performed in all material respects all correct and complete copy of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract each written agreement set forth on Schedule 5.112.11(a) or Schedule 2.14(a), including all modifications and amendments thereto. With respect to each agreement set forth on Schedule 2.11(a) or Schedule 2.14(a), such agreement: (i) is valid, binding and in full force and effect in all material respects; (ii) will remain unmodified and in full force and effect immediately after the Closing without any right on the part of any counterparty, including with the passage of time or notice, or both, to terminate, modify or impose any penalty as a result of the transactions contemplated hereby; (iii) is and will remain, including with the passage of time or notice, or both, immediately after the Closing enforceable by the applicable Company in accordance with its respective terms; and (iv) HI has no knowledge none of the Companies, nor, to Seller’s Knowledge, any other party, is in material breach or anticipated material breach by default under such agreement. No Company has received any written notice (or to Seller’s Knowledge, any other notice) of the intention of any party to terminate any contract specific agreement listed on Schedule 5.112.11(a). There are no oral agreements with respect to the subject matter of Schedule 2.11(a) or Schedule 2.14(a) that, individually or in the aggregate, are material to the Company. (c) HI Schedule 2.11(c) sets forth a list of the transportation contracts with the Companies’ ten (10) largest customers (by consolidated revenue) for the first six (6) months of 2014, true, correct and complete copies of which, including all modifications and amendments thereto, have been made available to Buyer in the Document Room as of September 30, 2014 (collectively, “Customer Contracts”). None of the Companies, nor, to Seller’s Knowledge, any other party, is in material breach or default under such contract. Other than customary notice to the applicable Company that such Company must bid to continue to provide services to a customer as part of the customer’s normal bid cycles, no Company has provided received written notice (or, to Seller’s Knowledge, any other notice) from any customer that such customer intends to terminate, substantially modify, fail to renew, or reduce volumes substantially under, any such Customer Contract. (d) Schedule 2.11(d) sets forth a list of the Investor contracts with the Companies’ ten largest vendors or suppliers (by consolidated expenses) for the first six (6) months of 2014, true, correct and complete copies of which, including all modifications and amendments thereto, have been made available to Buyer in the Document Room as of September 30, 2014 (collectively, “Vendor Contracts”). None of the Companies, nor, to Seller’s Knowledge, any other party, is in material breach or default under such contract. No Company has received written notice (or, to Seller’s Knowledge, any other notice) from any vendor that such vendor intends to terminate, substantially modify, fail to renew or reduce volumes substantially under any such Vendor Contract. (e) Schedule 2.11(e) sets forth a true list of the Companies’ three (3) largest fuel purchase contracts for the first six (6) months of 2014, true, correct and correct copy complete copies of all written contracts which are referred to on Schedule 5.11 which have been requested by Investorsmade available to Buyer in the Document Room as of September 30, together with all amendments, waivers or other changes thereto2014.

Appears in 1 contract

Samples: Stock Purchase Agreement (Knight Transportation Inc)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on Schedule 3.12(a) (such Contracts disclosed or required to be disclosed thereon, and any such Contracts that would have been required to be disclosed thereon if in effect on the attached Schedule 5.11date hereof, HI the “Material Contracts”), as of the date hereof, no Acquired Company is not a party to or otherwise bound by, whether written or oral, by any: : (i) collective bargaining agreement Contract involving aggregate consideration in excess of $250,000 and which, in each case, cannot be cancelled by such Acquired Company without penalty or contract with any labor union, whether formal or informal; without more than 90 days’ notice; (ii) contract (A) Contract with any Service Provider that provides for retention, change in control, transaction or similar bonuses, payments or benefits (B) consulting or employment Contracts with any Service Provider providing for base compensation in excess of $200,000 per year or (C) consulting or employment Contracts with Service Providers that cannot be terminated by the employment Acquired Companies without the payment of any officer, individual employee contractual severance or group of employees or other person on a full-time, part-time or consulting basis or any severance agreements; penalties; (iii) agreement or indenture Contract relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than Permitted Liens) on any material portion of the assets of HI; any Acquired Company; (iv) agreements with respects to the lending or investing of funds; (v) guaranty of any obligation for borrowed money or otherwiseother guaranty involving more than $500,000; (v) Contract providing for the indemnification by such Acquired Company of any Person or the assumption of any Tax, environmental or other liability of any Person (in each case other than endorsements made for collection; Contracts the primary purpose of which is unrelated to indemnification or the assumption of liabilities); (vi) license or royalty agreements except those entered into in the ordinary course of business; (vii) lease or agreement Contract under which HI it is lessee of, or holds or operates, operates any personal property owned by any other party party, for which the annual rental exceeds $50,000; 250,000; (viiivii) lease or agreement Contract under which HI it is lessor of or permits any third party to hold or operate any of its personal property, real or personal, owned or controlled by it for which the annual rental exceeds $50,000; 250,000; (ixviii) contract Contract or group of related contracts Contracts with the same party (other than standard purchase orders or pricing agreements or programs) for the purchase or sale by any Acquired Company of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls provides for performance over a period of more than one year and involves a sum annual payments in excess of $50,000 per year; 500,000 during any twelve (12)‑month period; (ix) broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting or advertising Contract; (x) contract relating to the distributionContract providing for any joint venture, marketing partnership or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; similar arrangement by such Acquired Company; (xi) franchise agreements, Contract with any Governmental Authority; (xii) contract Contract relating to any completed material business, asset or real property acquisition or disposition by any Acquired Company since May 4, 2019; (xiii) Contract (A) which prohibits it or restricts (or purports to prohibit or restrict) any Acquired Company or any of its Affiliates (including, following the Closing, Purchaser and its Affiliates) from (I) freely competing in any line of business or with any Person or engaging in business anywhere in the world; world or (xiiiII) obtaining products or services from any other agreement material to HI not entered into Person, (B) that imposes exclusivity requirements (including “requirements” obligations), non-competition obligations, non-solicitation obligations or minimum payment, purchase or sale obligations (including “take-or-pay” provisions or “output” contracts), “most favored nations” or “most favored customer” restrictions or rights of first or last offer on any Acquired Company or any of its Affiliates (including, following the Closing, Purchaser and its Affiliates), or otherwise restricts any Acquired Company or any of its Affiliates (including, following the Closing, Purchaser and its Affiliates) in any respect in the ordinary course development, distribution, licensing, marketing, or sale of businessany of its products or services, (C) with a sole source supplier of material goods or services, or (D) that purport to bind direct or indirect equityholders of any Acquired Company or any of their respective Affiliates other than the Acquired Companies; (xiv) Contract with any Material Customer or Material Supplier; (xv) Contract that is a Related Party Arrangement; or (xvi) Contract providing for the settlement or compromise of any material pending Action or prior Action pursuant to which any Acquired Company has any ongoing obligations. (b) Except as specifically contemplated by this Agreement, or disclosed set forth on Schedule 5.113.12(b), (i) no contract or commitment required to be disclosed on Schedule 5.11 each Acquired Company is, and at all times since May 4, 2019, has been breached or canceled by the other party since June 30been, 1999, in material compliance with all applicable terms and requirements of each Material Contract; (ii) HI to the Acquired Companies’ Knowledge, each other Person that has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11had any obligation or liability under any Material Contract is, and is not at all times since May 4, 2019, has been, in receipt full compliance with all applicable terms and requirements of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, such Material Contract; (iii) HI no event has no present expectation occurred or intention circumstance exists that, with or without notice or lapse of not fully performing time, may contravene, conflict with or result in a breach of, or give any obligation pursuant Acquired Company or other Person the right to declare a default or exercise any contract set forth on Schedule 5.11remedy under, and or to accelerate the maturity or performance of, or payment under, or to cancel, terminate or modify, any Material Contract; (iv) HI no event has no knowledge occurred or circumstance exists under or by virtue of any material Material Contract that, with or without notice or lapse of time, would cause the creation of any Lien affecting any of the Acquired Companies’ assets; (v) no Acquired Company has given to or received from any other Person any written notice or other written communication (or, to the Acquired Companies’ Knowledge, any oral notice) regarding (A) any actual, alleged, possible or potential violation or breach of, or anticipated material breach by default under, any party Material Contract or (B) the non-renewal or partial or total termination of any Material Contract; and (vi) no Person has terminated or delivered written notice to or otherwise informed in writing to any contract specific Acquired Company of, and to the Acquired Companies’ Knowledge, no Person has, any intention to terminate or alter in a manner that is material and adverse to the Acquired Companies or their business, taken as a whole, its relationship with the Acquired Companies (including by materially decreasing the volumes or dollar amounts of products ordered or purchased from or supplied to the Acquired Companies, or by materially altering the payment or terms on Schedule 5.11. (c) HI has provided the Investor with a true which products are ordered, purchased or supplied). Complete and correct copy copies of each Material Contract (including all written contracts which are referred to modifications, amendments and supplements thereto and waivers thereunder) in effect on Schedule 5.11 which the date hereof have been requested by Investors, together with all amendments, waivers or other changes theretomade available to Purchaser.

Appears in 1 contract

Samples: Merger Agreement (Myers Industries Inc)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except (x) as set forth on the attached Schedule 5.11Contracts Schedule, HI (y) for Government Contracts and Government Bids, which are the subject of Section 5.16, and (z) for agreements entered into by the Company or its Subsidiaries after the date hereof not in violation of Section 7.01, neither the Company nor its Subsidiaries is not a party to or bound by, whether written or oral, any: (i) collective bargaining agreement or contract with any labor union, whether formal or informalagreement; (ii) written bonus, pension, employee profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 5.13 or the Disclosure Schedules relating thereto; (iii) equity purchase, option or similar plan; (iv) contract for the employment of any officer, individual employee or group of employees or other person on a full-time, part-time or consulting basis or any severance agreementsproviding for base salary compensation in excess of $300,000 per annum; (iiiv) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien Lien, except for Permitted Liens, on any material portion of the assets of HIthe Company and its Subsidiaries; (iv) agreements with respects to the lending or investing of funds; (vvi) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of businessmaterial guaranty; (vii) lease or agreement under which HI it is lessee of, or holds or operates, operates any personal property owned by any other party party, for which the annual rental exceeds $50,0001,000,000; (viii) lease or agreement under which HI it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which the annual rental exceeds $50,0001,000,000; (ix) contract or group of related contracts with the same party for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls provided for performance over a period of more than one year and involves a sum payments by the Company or its Subsidiaries in excess of $50,000 per year5,000,000 during the trailing twelve-month period ending on the date of the Latest Balance Sheet; (x) agreements relating to any completed material business acquisition by the Company or its Subsidiaries within the last two (2) years; (xi) material license or royalty agreement under which (A) the Company or any of its Subsidiaries is granted a license to the Intellectual Property of any Person (other than licenses for commercially available, off-the-shelf software), but only to the extent such license is material to the business of the Company and its Subsidiaries, or (B) under which the Company or any of its Subsidiaries has granted to any Person any right or interest in any material Company Intellectual Property (other than any non-exclusive licenses granted by the Company or any of its Subsidiaries in the Ordinary Course of Business); provided, however, that the foregoing (A) and (B) shall not be deemed to require disclosure of any agreement for which the license is not the primary purpose of such agreement or any agreements for which fees or payments do not exceed $1,000,000 during the trailing twelve month period ending on the date of the Latest Balance Sheet; (xii) contract or agreement with any Affiliate; (xiii) agreement that contains covenants materially limiting the freedom of the Company or any Subsidiary to compete in any business, industry or geographic area or which contains pricing protection or “most favored nation” provisions (other than Teaming Agreements); (xiv) material contract with minimum purchase commitments; (xv) distribution, dealership or franchise agreement (excluding purchase orders issued or received in the Ordinary Course of Business) relating to the distribution, distribution or marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits it from freely engaging in business anywhere in the world; or (xiiixvi) settlement, conciliation or similar agreement with any other agreement material Governmental Entity or pursuant to HI not entered into which the Company will be required after the execution date of this Agreement to pay consideration in the ordinary course excess of business$500,000. (b) Except as specifically contemplated by this Agreement, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11the Contracts Schedule, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11. (c) HI has provided the Investor with a true and correct copy copies of all written contracts which are referred to on the Contracts Schedule 5.11 which have been requested by Investorsmade available to the Purchaser and Merger Sub, in each case together with all amendmentsamendments thereto. The Contracts Schedule contains an accurate and complete description of all material terms of all oral contracts referred to therein. (c) Neither the Company nor its Subsidiaries is in default in any material respect under any contract listed on the Contracts Schedule, waivers and each such contract is valid, binding, enforceable and in full force and effect with respect to the Company, and, to the knowledge of the Company, with respect to any other party to such contract, in each case, except as enforceability may be limited by bankruptcy laws, other similar laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies. To the Company’s knowledge, no event has occurred that with the passage of time or the giving of notice or both would result in a material default or breach by the Company or any of its Subsidiaries or any other changes theretoparty under any such contract, agreement, settlement or instrument required to be listed on the Contracts Schedule. Except as set forth on the Contracts Schedule, with respect to each contract, agreement or instrument required to be set forth on the Contracts Schedule, to the Company’s knowledge, there is not any ongoing material breach by any other party to such contract, agreement or instrument.

Appears in 1 contract

Samples: Merger Agreement (Caci International Inc /De/)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on Schedule 3.9(a) (collectively, the attached Schedule 5.11“Material Contracts”), HI as of the date hereof, neither the Company nor any of its Subsidiaries is not a party to to, or is otherwise bound by, whether written or oral, any: : (i) collective bargaining agreement or other contract with any labor union, whether formal or informal; Union; (ii) stock purchase, stock option or similar plan; (iii) contract for the employment or engagement of any officer, individual employee or group of employees or other person on a full-time, part-time time, temporary, consulting or consulting other basis or providing for annual base compensation in excess of $125,000, in each case other than contracts terminable by the Company for any severance agreements; reason upon less than thirty (iii30) days’ notice without incurring any liability; (iv) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien on any of the assets of HI; (iv) agreements with respects to the lending or investing of funds; their assets; (v) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; material guaranty; (vi) license or royalty agreements except those entered into in the ordinary course of business; (vii) lease or agreement under which HI it is lessee of, or holds or operates, operates any personal property owned by any other party party, for which the annual rental exceeds $50,000; 100,000; (vii) agreements relating to any completed business acquisition by the Company or any of its Subsidiaries within the last four years; (viii) lease or agreement under which HI is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which annual rental exceeds $50,000; (ixi) contract pursuant to which one or group more of related contracts the Company or its Subsidiaries uses Intellectual Property owned by another Person material to the conduct of the Business (excluding (A) shrink-wrap, click-through or similar non-exclusive license agreements, in each case for Software, (x) with the same party for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance over a period of more than one year and involves a sum total annual payments not in excess of $50,000 in the aggregate per year; vendor, (xy) is obtained on generally available standard commercial terms, and (z) is not distributed with, incorporated in, or necessary for use or development of, any product or service of the Company or its Subsidiaries, (B) non-disclosure agreements entered into in the Ordinary Course and (C) non-exclusive license agreements with, consultants and independent contractors of one or more of the Company or its Subsidiaries entered into on the Company’s or its Subsidiaries’ respective standard form(s) (or a substantially similar form) in the ordinary course of business), (ii) any contract relating pursuant to which one or more of the distributionCompany or its Subsidiaries grants to another Person the right to use any of the Company Intellectual Property (excluding non-exclusive licenses granted to customers in the Ordinary Course), marketing or sales of its products or services and (iii) all contracts (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; (xi) franchise settlement agreements, co-existence agreements, and consent agreements) to which the Company or its Subsidiaries is a party or is otherwise bound, pursuant to which the Company is restricted from using, registering, or enforcing Company Intellectual Property in any material respect; or (xiiix) contract which prohibits it the Company or any of its Subsidiaries from freely engaging in business anywhere in the world; or (xiii) any other agreement material to HI not entered into in the ordinary course of business. (b) Except as specifically contemplated by this Agreement, or disclosed on Schedule 5.11, (i) no contract or commitment required The Company has made available to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11. (c) HI has provided the Investor with Purchaser a true and correct copy of all written contracts which are referred to on Schedule 5.11 which have been requested 3.9(a). (c) Neither the Company nor any of its Subsidiaries is in default in any material respect under any Material Contract. All Material Contracts constitute legal, valid and binding obligations of the Company or such Subsidiary, and are enforceable against the Company or such Subsidiary in accordance with their respective terms, except as enforceability may be limited by Investorsbankruptcy laws, together with all amendmentsother similar laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies. Neither the Company nor any Subsidiary has received any written notice that any party intends to terminate, waivers cancel, or other changes theretonot renew any Material Contract.

Appears in 1 contract

Samples: Unit Purchase Agreement (Cadre Holdings, Inc.)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on Schedule 2.7 hereto lists the attached Schedule 5.11, HI is not a party to or bound byfollowing agreements, whether written oral or oralwritten, anyto which the Company is a party, which are currently in effect, and which relate to the operation of the Company’s business: (i) collective bargaining agreement or contract with any labor union; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan; (iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal; (iiiv) stock purchase or stock option plan; (v) contract for the employment of any officer, individual employee or group of employees or other person on a full-time, part-time or consulting basis or relating to severance pay for any severance agreementssuch person; (iiivi) confidentiality agreement; (vii) contract, agreement or understanding relating to the voting of the Company’s capital stock or the election of directors; (viii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien lien on any of the assets of HIthe Company; (iv) agreements with respects to the lending or investing of funds; (vix) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of business; (viix) lease or agreement under which HI the Company is lessee of, or holds or operatesoperates any property, any personal property real or personal, owned by any other party party, for which the annual rental exceeds $50,00010,000; (viiixi) lease or agreement under which HI the Company is lessor of of, or permits any third party to hold or operate operate, any property, real or personal, owned or controlled by it for which the annual rental exceeds $50,00010,000; (ix) contract or group of related contracts with the same party for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance over a period of more than one year and involves a sum in excess of $50,000 per year; (x) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits it the Company from freely engaging in business anywhere in the world; or (xiii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Schedule 2.19(b) hereto; (xiv) contract or commitment for capital expenditures in excess of $10,000; (xv) agreement for the sale of any capital asset; (xvi) contracts, understandings, arrangements or commitments with respect to the acquisition and/or use by the Company of Intellectual Property of others or by others of Company Intellectual Property (as defined in Section 2.19 hereof); or (xvii) other agreement which is either material to HI the Company’s business or was not entered into in the ordinary course of business. (b) Except as specifically contemplated by this Agreement, or disclosed on Schedule 5.11, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI The Company has performed in all material respects all of the obligations required to be performed by HI them in connection with the contracts or commitments required to be disclosed on the in Schedule 5.11, 2.7 and is not in receipt of any claim of default under any contract or commitment required to be disclosed on under such caption; the Schedule 5.11, (iii) HI Company has no present expectation or intention of not fully performing any material obligation pursuant to any contract set forth on Schedule 5.11, or commitment required to be disclosed under such caption; and (iv) HI the Company has no knowledge Knowledge of any material breach or anticipated material breach by any other party to any contract specific on Schedule 5.11or commitment required to be disclosed under such caption. (c) HI has provided the Investor with a true and correct copy of all written contracts which are referred to on Schedule 5.11 which have been requested by Investors, together with all amendments, waivers or other changes thereto.

Appears in 1 contract

Samples: Merger Agreement (Equitex Inc)

Contracts and Commitments. Except as set forth in SCHEDULE 2.13: (a) Except as specifically contemplated by this Agreement and except as set forth on the attached Schedule 5.11, HI is Sellers are not a party to any contract, commitment or bound byarrangement of the type described below which would be binding on Buyer with respect to any employees of the Txxx Facility after the Closing Date, whether written or oral, any: would otherwise be applicable to or binding upon Buyer for any reason at any time after the Closing Date: (i) collective bargaining agreement bonus, pension, profit sharing, retirement or contract with any labor uniondeferred compensation plan or stock purchase, stock option, hospitalization insurance or similar plan or practice, whether formal or informal; , or severance agreements or arrangements; (ii) contract with any labor union or contract for the employment of any officer, individual employee or group of employees or other person Person on a full-time, part-time or consulting basis or any severance agreements; basis; (iii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien lien on any of the assets of HI; Assets; (iv) agreements with respects to the lending or investing of funds; (v) guaranty guarantee of any obligation for borrowed money or otherwise, other than endorsements made for collection; collection in the ordinary course of business; (v) agreement or commitment with respect to the lending or investing of funds to or in other persons or entities; (vi) license or royalty agreements except those entered into in the ordinary course of business; agreement; (vii) lease or agreement under which HI it is lessee of, of or holds or operates, operates any personal property owned by any other party for which the aggregate annual rental payments to any one Person and its affiliates exceeds $50,000; 10,000 (except to the extent any of the foregoing constitutes a Contract Right to be assumed by Buyer hereunder); (viii) lease or agreement under which HI it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which the aggregate annual rental exceeds $50,000; 10,000 (except to the extent any of the foregoing constitutes a Contract Right to be assumed by Buyer hereunder); (ix) contract or group of related contracts with the same party for the purchase or sale of raw materials, commodities, supplies, products or services under which the undelivered balance of such products and services has a selling price in excess of $10,000 (except to the extent any of the foregoing constitutes a Contract Right to be assumed by Buyer hereunder); (x) other personal property contract or for group of related contracts with the furnishing or receipt of services which either calls for performance same party continuing over a period of more than one year and involves a sum in excess of $50,000 per year; six (x6) contract relating to months from the distributiondate or dates thereof, marketing not terminable by it on thirty (30) days' or sales of its products less notice without penalties or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; 10,000 (except to the extent any of the foregoing constitutes a Contract Right to be assumed by Buyer hereunder); (xi) franchise agreements, (xii) contract which prohibits it from freely engaging in business anywhere in the world; ; (xii) contract relating to the distribution or brokerage of its products; (xiii) supply agreements or obligations undertaken by Sellers since June 30, 2002, not otherwise described in this SECTION 2.13 (except to the extent any of the foregoing constitutes a Contract Right to be assumed by Buyer hereunder); or (xiv) contract with any officer, director, partner, shareholder or other agreement material to HI not entered into in the ordinary course insider of businessSellers. (b) Except as specifically contemplated by this Agreementdisclosed in SCHEDULE 2.13, or disclosed on Schedule 5.11since June 30, 2002, (i) to the knowledge of Sellers, no contract or commitment required material and relating primarily to be disclosed on Schedule 5.11 the Business, the Txxx Facility or the Assets has been breached or canceled by the other party since June 30, 1999party, (ii) HI has Sellers have performed in all material respects all of the obligations required to be performed by HI them through the date of this Agreement in connection with the contracts or commitments required to be disclosed on Business, the Schedule 5.11, Txxx Facility and is the Assets and are not in receipt of any written claim of default under any contract lease, contract, commitment or commitment required other agreement to be disclosed on which any Seller is a party having an aggregate value over the Schedule 5.11, life thereof in excess of $10,000; and (iii) HI no event has no present expectation occurred which, with the passage of time or intention the giving of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11notice or both, and (iv) HI has no knowledge of would result in a breach or default under any material breach lease, contract, instrument or anticipated material breach by other agreement to which any Seller is a party and which is related to any contract specific on Schedule 5.11the Assets. (c) HI SCHEDULE 2.13 contains a list of all Contract Rights and Assumed Contracts, and Seller has provided the Investor supplied Buyer with a true and correct copy of all written contracts Assumed Contracts which are referred to on Schedule 5.11 which have been requested by Investors2.13, together with all amendments, waivers or other changes thereto.

Appears in 1 contract

Samples: Asset Purchase Agreement (Oil Dri Corporation of America)

Contracts and Commitments. (a) Except 2.7.1. Attached hereto as specifically contemplated by this Agreement Schedule 2.7 is a separate schedule containing an accurate and except as set forth on the attached Schedule 5.11, HI is not a party to or bound by, whether written or oral, any: complete list of: (i) collective bargaining agreement any contract, agreement, purchase order or other commitment for the purchase or sale by Seller of goods, property or services together with all amendments, waivers or other changes thereto.; (ii) any pension, profit sharing, stock option, employee stock purchase or other plan providing for deferred compensation or other employee benefit plan, or any contract with any labor union, whether formal or informal; (ii) contract for the employment of any officer, individual employee or group of employees or other person on a full-time, part-time or consulting basis or any severance agreements; ; (iii) any agreement or indenture relating to the borrowing of money or to the mortgaging, pledging or otherwise placing a Lien lien on any material asset or material group of the assets of HI; Seller; (iv) agreements with respects to the lending or investing of funds; (v) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of business; (vii) lease or agreement under which HI it is lessee of, of or holds or operatesoperates any property, any personal property real or personal, owned by any other party party, except for any lease of personal property under which the aggregate annual rental exceeds payments do not exceed $50,000; 1,000; (viiiv) any lease or agreement under which HI it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it; (vi) all agreements providing for the services of an independent contractor to which Seller is a party or by which it for is bound; (vii) as of a date no earlier than November 30, 1995 all of Seller's Accounts Receivables as previously referred to in Section 1.9 together with detailed information as to each such listed receivable which annual rental exceeds $50,000; has been outstanding more than thirty (ix30) contract days; (viii) any and all other or group additional contracts, commitments, agreements, arrangements, writings, guarantees, leases and licenses to which Seller is a party or by which Seller or any of related contracts its property is bound. Each of the contracts, agreements, leases, licenses and commitments required to be listed on Schedule 2.7 (the "Contracts") is valid and binding, enforceable in accordance with its respective terms, in full force and effect and, except as otherwise specified in Schedule 2.7, validly assignable to Purchaser without the consent, approval or act of, or the making of any filing with, any other person so that, after the assignment thereof to Purchaser pursuant hereto, Purchaser will be entitled to the full benefits thereof. True and complete copies of all of the Contracts (together with any and all amendments thereto) have been delivered to Purchaser and initialed by Seller's Secretary and identified with a reference to this Section of this Agreement. To the best of its knowledge, Seller has performed all obligations required to be performed by it and is not in default under or in breach of or in receipt of any claim of default or breach under any of the Contracts and no event has occurred which with the same passage of time or the giving of notice or both would result in a default, breach or event of noncompliance under any such Contract; Seller has no knowledge of any breach or anticipated breach by the other parties to any such Contract; and, to the best of its knowledge, Seller is not a party to any Contract for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance over a period of more than one year and involves a sum in excess of $50,000 per year; (x) contract relating to the distribution, marketing or sales of its products goods or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits it from freely engaging in business anywhere in the world; or (xiii) any other agreement material to HI not entered into in the ordinary course of businessat a rate currently above market prices. (b) Except as specifically contemplated by this Agreement, or disclosed on Schedule 5.11, 2.7.2. (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI Seller has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, it and is not in default under or in breach of nor in receipt of any claim of default or breach under any contract agreement referred to in Section 2.7.1, (ii) no event has occurred which with the passage of time or commitment required to be disclosed on the Schedule 5.11giving of notice or both would result in a default, breach or event of noncompliance under any such agreement, and (iii) HI has no present expectation or intention of Seller does not fully performing have any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any other party to any contract specific on Schedule 5.11such agreements. (c) HI has provided the Investor with a true and correct copy of all written contracts which are referred to on Schedule 5.11 which have been requested by Investors, together with all amendments, waivers or other changes thereto.

Appears in 1 contract

Samples: Asset Purchase Agreement (Life Critical Care Corp)

Contracts and Commitments. (a) Except as specifically filed as an exhibit to Seller's SEC Reports, and except as contemplated by this Agreement and except as set forth Agreement, neither Seller, nor the Seller Subsidiaries, nor the entities listed on the attached Schedule 5.11, HI 3.1(b) is not a party to or bound byby any oral or written contract, whether written obligation or oral, any: commitment of any type in any of the following categories: (i) collective bargaining agreement agreements or contract arrangements that contain severance pay, understandings with any labor unionrespect to tax arrangements, whether formal understandings with respect to expatriate benefits, or informal; post-employment liabilities or obligations; (ii) contract for agreements or plans under which benefits will be increased or accelerated by the employment occurrence of any officerof the transactions contemplated by this Agreement, individual employee or group under which the value of employees or other person the benefits will be calculated on a full-time, part-time or consulting the basis or of any severance agreements; of the transactions contemplated by this Agreement; (iii) agreement agreements, contracts or indenture commitments currently in force relating to the borrowing disposition or acquisition of money or to placing a Lien on any of the assets of HI; (iv) agreements with respects to the lending or investing of funds; (v) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vi) license or royalty agreements except those entered into in the ordinary course of business; , or relating to an ownership interest in any corporation, partnership, joint venture or other business enterprise; (iv) agreements, contracts or commitments for the purchase of materials, supplies or equipment, under which the aggregate payments for the past 12 months exceeded $100,000, which are with sole or single source suppliers; (v) guarantees or other agreements, contracts or commitments under which Seller or any of the Seller Subsidiaries is absolutely or contingently liable for (A) the performance of any other person, firm or corporation (other than Seller or the Seller Subsidiaries), or (B) the whole or any part of the indebtedness or liabilities of any other person, firm or corporation (other than Seller or the Seller Subsidiaries); (vi) powers of attorney authorizing the incurrence of a material obligation on the part of Seller or the Seller Subsidiaries; (vii) lease agreements, contracts or agreement under commitments which HI is lessee oflimit or restrict (A) where Seller or any of the Seller Subsidiaries may conduct business, (B) the type or lines of business (current or future) in which they may engage, or holds (C) any acquisition of assets or operates, stock (tangible or intangible) by Seller or any personal property owned by any other party for which annual rental exceeds $50,000; of the Seller Subsidiaries; (viii) lease agreements, contracts or agreement commitments, under which HI is lessor the aggregate payments or receipts for the past 12 months exceeded $100,000, containing any agreement with respect to a change of control of Seller or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which annual rental exceeds $50,000; of the Seller Subsidiaries; (ix) contract agreements, contracts or group of related contracts with the same party commitments for the purchase borrowing or sale lending of raw materialsmoney, commodities, supplies, products or other personal property the availability of credit (except credit extended by Seller or for any of the furnishing or receipt of services which either calls for performance over a period of more than one year and involves a sum in excess of $50,000 per year; (x) contract relating Seller Subsidiaries to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits it from freely engaging in business anywhere in the world; or (xiii) any other agreement material to HI not entered into customers in the ordinary course of businessbusiness and consistent with past practice); (x) any hedging, option, derivative or other similar transaction and any foreign exchange position or contract for the exchange of currency; or (xi) any agreement, contract or commitment otherwise required to be filed as an exhibit to a periodic report under the Exchange Act, as provided by Rule 601 of Regulation S-K promulgated under the Exchange Act. Each contract, agreement or commitment of the type described in this Section 3.15 is referred to herein as a "SELLER CONTRACT." (b) Except as specifically contemplated by this AgreementNeither Seller nor any of the Seller Subsidiaries, nor to the knowledge of Seller any other party to a Seller Contract, has breached, violated or defaulted under, or disclosed on Schedule 5.11received notice that it has breached, violated or defaulted under, (i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30nor does there exist any condition under which, 1999, (ii) HI has performed in all material respects all of the obligations required to be performed by HI in connection with the contracts passage of time or commitments required the giving of notice or both, could reasonably be expected to cause such a breach, violation or default under), any Seller Contract, other than any breaches, violations or defaults which have not had, or could not reasonably be disclosed on expected to have, individually or in the Schedule 5.11aggregate, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11a Seller Material Adverse Effect. (c) HI Each Seller Contract is a valid, binding and enforceable obligation of Seller and to the knowledge of Seller, of the other party or parties thereto, in accordance with its terms, and in full force and effect, except where the failure to be valid, binding, enforceable and in full force and effect has provided not had, or could not reasonably be expected to have, individually or in the Investor with aggregate, a true Seller Material Adverse Effect and correct to the extent enforcement may be limited by applicable bankruptcy, insolvency, moratorium or other laws affecting the enforcement of creditors' rights governing or by general principles of equity. (d) An accurate and complete copy of all written contracts which are referred each Seller Contract has been made available (including via XXXXX) to on Schedule 5.11 which have been requested by Investors, together with all amendments, waivers or other changes theretoBuyer.

Appears in 1 contract

Samples: Merger Agreement (N2h2 Inc)

Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on Schedule 2.12(a) of the attached Schedule 5.11Seller Disclosure Schedule, HI the Company is not a party to or bound by, whether written or oral, any: by any of the following: (i) collective bargaining agreement any Contract that provides for post-employment or contract with any labor unionpost-consulting liabilities or obligations on the part of the Company, whether formal or informal; including severance pay; (ii) contract any Contract or Company Employee Benefit Plan under which payments or obligations will be increased, accelerated or vested by the occurrence (whether alone or in conjunction with any other event) of any of the transactions contemplated by this Agreement or under which the value of the payments or obligations will be calculated on the basis of any of the transactions contemplated by this Agreement, whether pursuant to a change in control or otherwise; (iii) any Contract currently in force relating to the disposition or acquisition of assets where the fair market value of such assets exceeds $10,000, in each case other than inventory, products or services sold, licensed or provided in the ordinary course of business and consistent with past practice; (iv) any Contract under which the Company has an ownership interest in any corporation, partnership, joint venture or other business enterprise or Person; (v) any Contract for the employment purchase of any officermaterials, individual employee supplies, equipment or services, under which the aggregate payments made to one party or group of employees related parties during the past twelve (12) months exceeded, or for the following twelve (12) months is expected to exceed, $10,000, in each case other person on a full-timethan inventory, part-time products or consulting basis services sold, licensed or provided in the ordinary course of business and consistent with past practice; (vi) any severance agreements; (iii) agreement Contract for the licensing of Software or indenture relating to for the borrowing provision of money hardware or to placing a Lien on any of services, in each case by the assets of HI; (iv) agreements with respects to the lending Company as licensor or investing of funds; (v) guaranty of any obligation for borrowed money or otherwiseservice provider, other than endorsements made for collection; (vi) license or royalty agreements except those such Contracts entered into in the ordinary course of business; business in which the fees to the Company do not exceed $10,000; (vii) lease or agreement any Contract under which HI is lessee of, or holds or operates, any personal property owned by the Company acts as a guarantor of (A) the performance of any other party for which annual rental exceeds $50,000; Person (other than the Company) or (B) the whole or any part of the indebtedness or liabilities of any other Person (other than the Company); (viii) lease or agreement any Contract under which HI is lessor the Company agrees to indemnification of its officers, directors, managers or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which annual rental exceeds $50,000; agents; (ix) contract any Contract containing an obligation of the Company to indemnify any Person in an amount that exceeds the cash consideration actually received by the Company pursuant to such Contract; (x) any power of attorney authorizing the incurrence of an obligation on the part of the Company; (xi) any Contract which limits or group restricts (A) where the Company may conduct business, (B) the type or lines of related contracts with business (current or future) in which the same party Company may engage or (C) any acquisition of assets or stock (tangible or intangible) by the Company; (xii) any Contract under which the aggregate payments or receipts for the purchase or sale of raw materialspast twelve (12) months exceeded, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance over a period of more than one year and involves a sum in excess of following twelve (12) months is expected to exceed, $50,000 per year; (x) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000 per year; (xi) franchise agreements, (xii) contract which prohibits it from freely engaging in business anywhere in the world; or 10,000; (xiii) any other agreement material Contract for the borrowing or lending of money, or the availability of credit (except credit extended by an the Company to HI not entered into customers in the ordinary course of businessbusiness and consistent with past practice); (xiv) any Contract relating to any hedging, option, derivative or other similar transaction and any foreign exchange position or contract for the exchange of currency; (xv) any collective bargaining agreements; or (xvi) any Contract which is an employment Contract between the Company and any individuals, excluding “at will” employment agreements. Each Contract of the type described in this Section 2.12(a) and in existence as of the date hereof is referred to herein as a “Company Contract”. (b) Except as specifically contemplated An accurate and complete copy of each written Company Contract executed by this Agreement, or disclosed on Schedule 5.11, the parties thereto (iincluding all amendments thereto) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party since June 30, 1999, (ii) HI has performed in all material respects all of the obligations required made available to be performed by HI in connection with the contracts or commitments required to be disclosed on the Schedule 5.11, and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Schedule 5.11, (iii) HI has no present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Schedule 5.11, and (iv) HI has no knowledge of any material breach or anticipated material breach by any party to any contract specific on Schedule 5.11Buyer. (c) HI Neither the Company nor, to Sellers’ knowledge, any other party to a Company Contract, is in material breach, violation or default under, or has provided received written notice (that has not been cured or corrected) that it has materially breached, violated or defaulted under (nor does there exist any condition under which, with the Investor passage of time or the giving of notice or both, would reasonably be expected to cause such a material breach, violation or default under), any Company Contract. (d) Each Company Contract is a valid, binding and enforceable obligation of the Company and, to Sellers’ knowledge, of the other party or parties thereto, in accordance with a true its terms and correct copy of all written contracts which are referred is in full force and effect, in each case except to on Schedule 5.11 which have been requested the extent enforcement may be limited by Investorsapplicable bankruptcy, together with all amendmentsinsolvency, waivers reorganization, moratorium or other changes theretolaws affecting creditors’ rights generally or by general equitable principles or by principles of good faith and fair dealing (regardless of whether enforcement is sought in equity or at law).

Appears in 1 contract

Samples: Securities Purchase Agreement (Accelrys, Inc.)

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