Contracts and Other Agreements. Section 3.8 of the Seller Disclosure Schedule sets forth a list of the following contracts and other agreements to which Seller is a party or by or to which Seller or Seller's assets or properties are bound or subject: (a) any agreement or series of related agreements requiring aggregate payments after the date hereof by or to Seller of more than $25,000; (b) any agreement with or for the benefit of any current or former officer, director, stockholder, employee or consultant of Seller; (c) any agreement with any labor union or association representing any employee of Seller; (d) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation, renegotiation or redetermination clause or that obligates Seller to purchase all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases of a particular product from a supplier; (e) any agreement for (i) sale of any of the assets or properties of Seller, other than in the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8; (f) any partnership or joint venture agreement; (g) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000; (h) any agreement containing covenants of Seller not to compete in any line of business, in any geographic area or with any person or covenants of any other person not to compete with Seller or in any line of business of Seller; (i) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter); (j) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements; (k) any agreement with any holder of securities of Seller as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws); (l) any agreement obligating Seller to deliver services or product enhancements or containing a "most favored nation" pricing clause; (m) any agreement relating to the acquisition by Seller of any operating business or the capital stock of any other person; (n) any agreement requiring the payment to any person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission or fees to employees in the ordinary course of business); (o) any agreement or note relating to or evidencing outstanding indebtedness for borrowed money; (p) any lease, sublease or other agreement under which Seller is lessor or lessee of any real property or equipment or other tangible property with respect to obligations in excess of $25,000; (q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources; and (r) any other material agreement whether or not made in the ordinary course of business. True and complete copies of all the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on the Seller Disclosure Schedule have been furnished to BEA. Each of such contracts is valid, subsisting, in full force and effect, binding upon Seller, and to the best knowledge of Seller, binding upon the other parties thereto in accordance with their terms, and Seller is not in default under any of them, nor, to the best knowledge of Seller, is any other party to any such contract or other agreement in default thereunder, nor does any condition exist that with notice or lapse of time or both, would constitute a default thereunder, except, in each case, such defaults as would not, individually or in the aggregate, have a material adverse effect on the Seller.
Appears in 2 contracts
Samples: Merger Agreement (Bea Systems Inc), Merger Agreement (Bea Systems Inc)
Contracts and Other Agreements. Section 3.8 of the Seller Disclosure Schedule sets forth a list of the following contracts (a) Contracts and other agreements agreements, whether written or binding oral (“Contracts”) described in this subsection, to which Seller the Company is a party or by or to which Seller it or Seller's any of its assets or properties are bound or subject:
(a) any agreement or series subject as of related agreements requiring aggregate payments after the date hereof by or of this Agreement are referred to Seller of more than $25,000;
herein collectively as “Material Contracts”: (bi) any agreement All Contracts with or for the benefit of Top Customers; (ii) agreements with any current or former Securityholder (including, to the Knowledge of the Company, any of their respective Affiliates) or any Employee or individual independent contractor of the Company or to the Knowledge of the Company, with any entity in which any of the foregoing is an officer, directordirector or five percent (5%) or greater Securityholder and pursuant to which the Company or such other party has current or future obligations or liabilities, stockholder, employee excluding salary and bonuses of Employees; (iii) contracts and other agreements pursuant to which the Company or consultant the other party thereto has current or future obligations or liabilities in excess of Seller;
$75,000 in any fiscal year and that are required to be disclosed on Schedule 2.24; (civ) any agreement contracts and other agreements with any labor union union, works council or association representing any employee of Seller;
Employee; (dv) any agreement contracts and other agreements for the procurement by the Company (including by purchase or sale license) of software, materials, supplies, equipment, merchandise or services services, for an amount in excess of $100,000 per annum; (vi) Licenses In or Licenses Out that contains an escalationinvolve recurring subscription or license payments/revenues in excess of $100,000 per annum; (vii) contracts and other agreements for the exclusive license of any of the assets or properties of the Company or for the grant to any person of any option, renegotiation right of first refusal (other than with respect to Company Stock), or redetermination clause preferential or similar right to purchase any of such assets or properties, including contracts containing any Most Favored Customer Provision; (viii) strategic partnership, alliance, joint development and joint marketing agreements, and joint venture agreements; (ix) contracts and other agreements that obligates Seller obligate the Company to purchase all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases of a particular product from a supplier;
(e) any agreement for (i) sale of any of the assets or properties of Seller, other than in the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8;
(f) any partnership or joint venture agreement;
(g) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000;
(h) any agreement containing covenants of Seller not to compete in any line of business, in any geographic area or with any person or covenants of any other person not to compete with Seller or in any line of business of Seller; (ix) any agreement granting contracts and other agreements with customers, suppliers, partners or restricting the right of Seller to use any Intellectual Property (as defined hereinafter);
(j) any agreement with customers or suppliers collaborators for the sharing of fees, the rebating of charges or other similar arrangements;
arrangements (k) any agreement with any holder except for customer contracts containing rebating of securities of Seller as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(l) any agreement obligating Seller to deliver services or product enhancements or containing a "most favored nation" pricing clause;
(m) any agreement relating to the acquisition by Seller of any operating business or the capital stock of any other person;
(n) any agreement requiring the payment to any person of a brokerage or sales commission or a finder's or referral fee (other than charges arrangements to pay commission or fees to employees in the ordinary course Ordinary Course of businessBusiness);
(o) any agreement or note relating to or evidencing outstanding indebtedness for borrowed money;
(p) any lease, sublease or other agreement under which Seller is lessor or lessee of any real property or equipment or other tangible property with respect to obligations in excess of $25,000;
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources; and
(r) any other material agreement whether or not made in the ordinary course of business. True and complete copies of all the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on the Seller Disclosure Schedule have been furnished to BEA. Each of such contracts is valid, subsisting, in full force and effect, binding upon Seller, and to the best knowledge of Seller, binding upon the other parties thereto in accordance with their terms, and Seller is not in default under any of them, nor, to the best knowledge of Seller, is any other party to any such contract or other agreement in default thereunder, nor does any condition exist that with notice or lapse of time or both, would constitute a default thereunder, except, in each case, such defaults as would not, individually or in the aggregate, have a material adverse effect on the Seller.33
Appears in 2 contracts
Samples: Merger Agreement (PTC Inc.), Merger Agreement
Contracts and Other Agreements. Section 3.8 of the Seller Disclosure Schedule sets forth a list of the following (a) Other than (1) contracts and other agreements to which Seller disclosed in Section 4.16 of the Company Disclosure Schedule or (2) contracts between the Company and its direct or indirect wholly owned Subsidiaries or between the Company's direct or indirect wholly owned Subsidiaries, none of the Company or any of its Subsidiaries is a party to or bound by or to which Seller or Seller's assets or properties are bound or subjectany:
(ai) any agreement contracts and other agreements with, or series of related agreements requiring aggregate payments after the date hereof by or to Seller of more than $25,000;
(b) any agreement with or for the benefit of loans to, any current or former officer, director, stockholderemployee, employee consultant, agent or consultant other representative of Sellerthe Company or its Subsidiaries, or any current stockholder of the Company, or any affiliate (excluding the Company and its Subsidiaries) or Family Member of the foregoing persons, other than pursuant to Plans described in Section 4.23 of the Company Disclosure Schedule;
(cii) any agreement contracts and other agreements with any labor union or association representing any employee of Selleremployee;
(diii) any agreement contracts and other agreements for the purchase or sale of materialsequipment or services, supplies, equipment, merchandise which involve the receipt or services that contains payment by the Company or its Subsidiaries of an escalation, renegotiation or redetermination clause or that obligates Seller to purchase all or substantially all amount in excess of its requirements $20,000 per month (in the aggregate in the case of a particular product from a supplier, or for periodic minimum purchases any related series of a particular product from a suppliercontracts and other agreements);
(eiv) any agreement contracts and other agreements for (i) the sale of any of the assets or properties of Seller, other than in the ordinary course of business Company or (ii) its Subsidiaries or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such of the assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule Company or pursuant to subsection (b) its Subsidiaries, which involve the receipt or payment by the Company or its Subsidiaries of this Section 3.8;
(f) any partnership or joint venture agreement;
(g) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,00020,000 (in the aggregate in the case of any related series of contracts and other agreements);
(hv) contracts and other agreements calling for an aggregate purchase price or payments in any agreement one year of more than $100,000 payable by the Company or its Subsidiaries in any one case (in the aggregate in the case of any related series of contracts and other agreements);
(vi) contracts and other agreements, whether or not currently in effect, relating to the acquisition by the Company or its Subsidiaries of any business of, or the disposition of any business involving the Company or its Subsidiaries to, any other person;
(vii) contracts relating to the disposition or acquisition of any investment or of any interest in any person, which involved the receipt or payment by the Company or its Subsidiaries of an amount in excess of $20,000 (in the aggregate in the case of any related series of contracts and other agreements);
(viii) joint venture and similar agreements which would involve the receipt or payment by the Company or its Subsidiaries of an amount in excess of $50,000 (in the aggregate in the case of any related series of contracts or other agreements);
(ix) contracts and other agreements, whether or not currently in effect, under which the Company or its Subsidiaries agreed to indemnify any party or to share tax liability of any party, which could involve the payment by the Company or its Subsidiaries of an amount in excess of $20,000 (in the aggregate in the case of any related series of contracts or other agreements);
(x) contracts and other agreements containing covenants of Seller the Company or its Subsidiaries, or, to the Company's Knowledge, its officers, directors or employees, not to compete in or solicit employees in any line of business, in any geographic area business or with any person in any geographical area or covenants of any other person not to compete with Seller or solicit employees from the Company in any line of business of Seller; (i) or in any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter)geographical area;
(jxi) contracts and other agreements relating to any agreement with customers or suppliers for the sharing of fees, the rebating of charges loan or other similar arrangementsextension of credit by the Company or its Subsidiaries to a stockholder, officer or director of the Company or its Subsidiaries or from a stockholder of the Company to the Company;
(kxii) contracts and other agreements relating to the borrowing of money by, or indebtedness of, the Company or its Subsidiaries or the direct or indirect guaranty by the Company or its Subsidiaries of any agreement with obligation or indebtedness of any holder other person or Governmental Entity (other than any accounts receivable or accounts payable of securities of Seller as such (the Company or its Subsidiaries), including, without limitation, any (a) agreement containing an obligation to register any of such securities under any federal or state securities laws);
(l) any agreement obligating Seller to deliver services or product enhancements or containing a "most favored nation" pricing clause;
(m) any agreement arrangement relating to the acquisition by Seller maintenance of any operating business compensating balances, (b) agreement or the capital stock arrangement with respect to lines of credit, (c) agreement to advance or supply funds to any other person;
(n) any agreement requiring the payment to any person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission or fees to employees in the ordinary course of business, (d) agreement to pay for property, products or services of any other person even if such property, products or services are not conveyed, delivered or rendered, (e) keep-well, make-whole or maintenance of working capital or earnings or similar agreement, and (f) guaranty with respect to any lease or other similar periodic payments to be made by any such person;
(xiii) contracts and other agreements relating to the provision by or to the Company or its Subsidiaries of third party management or administration services, which involve the receipt or payment by the Company or its Subsidiaries of an amount in excess of $50,000 (in the aggregate in the case of any related series of contracts and other agreements);
(oxiv) any agreement or note relating to or evidencing outstanding indebtedness for borrowed money;
(p) any lease, sublease or other agreement under each lease of personal property which Seller is lessor or lessee of any real property or equipment or other tangible property with respect to obligations requires annual lease payments in excess of $25,00050,000 and each Lease;
(qxv) Except for contracts and other agreements pursuant to provide maintenance, upgrades, bug fixes, error corrections which the Company or similar work product that are ordinary any of its Subsidiaries obtains or grants insurance or reinsurance;
(xvi) contracts and customary for other agreements between the software industry Company or its Subsidiaries and that are related to the Seller products any Governmental Entity;
(xvii) contracts and other agreements which have been delivered as require payments generated by a change in control of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resourcesCompany; and
(rxviii) any contracts and other material agreement agreements, whether or not made currently in the ordinary course effect, relating to disposal of business. True and complete copies of all the contracts any controlled or hazardous substance or waste.
(b) Each such contract and other agreements (and all amendments, waivers or other modifications thereto) set forth on the Seller Disclosure Schedule have been furnished to BEA. Each of such contracts agreement is valid, subsisting, in full force and effect, binding upon Seller, effect and to the best knowledge of Seller, binding upon the other parties thereto Company and its Subsidiaries, except for failures to be in accordance with their terms, full force and Seller is not in default under any of them, nor, to the best knowledge of Seller, is any other party to any such contract or other agreement in default thereunder, nor does any condition exist effect that with notice or lapse of time or both, would constitute a default thereunder, except, in each case, such defaults as would not, individually or in the aggregate, have a material adverse effect on Company Material Adverse Effect and, to the SellerCompany's Knowledge, the other parties thereto in accordance with its terms, and neither the Company nor any of its Subsidiaries is in default under any of them, except for defaults that would not, individually or in the aggregate, have a Company Material Adverse Effect, and the Company has no Knowledge of any threat of cancellation or termination thereunder, nor will the consummation of the transactions contemplated by this Agreement result in a default under any such contract or other agreement or the right to terminate such contract or other agreement, except for cancellations, terminations, defaults, or rights to terminate that would not, individually or in the aggregate, have a Company Material Adverse Effect. No Permits or other documents or agreements with, or issued by or filed with, any person, have been granted to any other person that provide the right to use any real or tangible personal property comprising any portion of the assets of the Company except for grants that would not, individually or in the aggregate, have a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries is a party to any contract, commitment, arrangement or agreement which would, following the Closing, restrain or restrict Parent or any affiliate of Parent, from operating the business of the Company in the manner in which it is currently operated, except for contracts, commitments, arrangements or agreement that would not individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Tannenhauser Robert), Merger Agreement (BLC Financial Services Inc)
Contracts and Other Agreements. Section 3.8 of the Seller Disclosure Schedule sets forth a list of the following contracts (a) Contracts and other agreements agreements, whether written or oral (“Contracts”) described in this subsection, to which Seller the Company is a party or by or to which Seller it or Seller's any of its assets or properties are bound or subjectsubject are referred to herein collectively as “Material Contracts”:
(ai) contracts and other agreements (other than at-will employment agreements) pursuant to which the Company or the other party thereto has current or future obligations or liabilities in excess of $25,000 in any agreement or series fiscal year and that are required to be disclosed on Schedule 2.26 of related agreements requiring aggregate payments after the date hereof by or to Seller of more than $25,000Company Disclosure Schedule;
(bii) any agreement with or for the benefit of any current or former officer, director, stockholder, employee or consultant of Seller;
(c) any agreement contracts and other agreements with any labor union or association representing any employee of Sellerthe Company;
(diii) any agreement contracts and other agreements for the procurement by the Company (including by purchase or sale license) of software, materials, supplies, equipment, merchandise or services services, or relating to capital expenditures, for an amount in excess of $25,000 per annum;
(iv) contracts and other agreements for the sale or license by the Company to any third party of software, materials, supplies, equipment, merchandise or services, or relating to capital expenditures, that contains involves an escalationamount or value in excess of $50,000 per annum;
(v) contracts and other agreements for (A) the sale or (B) the exclusive license of any of the assets or properties of the Company not described in clause (iv) or for the grant to any person of any option, renegotiation right of first refusal, or redetermination clause preferential or that obligates Seller similar right to purchase any of such assets or properties;
(vi) partnership, strategic alliance, joint development, joint marketing and joint venture agreements;
(vii) contracts and other agreements that obligate the Company to purchase or license all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases or licenses of a particular product from a supplier;
(eviii) any agreement for (i) sale of any of the assets contracts and other agreements with customers, suppliers, partners or properties of Seller, other than in the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8;
(f) any partnership or joint venture agreement;
(g) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000;
(h) any agreement containing covenants of Seller not to compete in any line of business, in any geographic area or with any person or covenants of any other person not to compete with Seller or in any line of business of Seller; (i) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter);
(j) any agreement with customers or suppliers collaborators for the sharing of fees, the rebating of charges or other similar arrangements, including contracts containing any Most Favored Customer Provision;
(kix) contracts or other agreements under which the Company agrees to indemnify any agreement party for Tax liabilities or to share the Tax liability of any party;
(x) contracts and other agreements containing any covenant limiting the freedom of the Company or any of its present or future Affiliates to (A) engage in any line of business or in any geographic territory or to compete with any holder of securities of Seller as such (includingPerson, without limitationor which grants to any Person any exclusivity with respect to any geographic territory, any agreement containing an obligation to register customer, or any of such securities under product or service, (B) solicit for employment, hire or employ any federal Person, or state securities laws(C) acquire property (tangible or intangible);
(lxi) any agreement obligating Seller to deliver services or product enhancements or containing a "most favored nation" pricing clause;
(m) any agreement contracts and other agreements relating to the acquisition or disposition by Seller the Company of any operating business or the capital stock or other securities of any other personPerson;
(nxii) any agreement contracts and other agreements requiring the payment to any person of a brokerage commission, fee or sales commission or a finder's or referral fee (royalty, other than arrangements to pay commission or fees to employees in the ordinary course of business);
(oxiii) contracts and other agreements pursuant to which the Company may collect any agreement or note relating to or evidencing outstanding indebtedness for borrowed moneyPersonal Information from any third parties;
(pxiv) any leasemortgages, sublease indentures, loan or credit agreements, factoring agreements, promissory notes and other agreements and instruments relating to the borrowing of money or financing or sale of receivables;
(xv) research, development (whether contracted or shared), and manufacturing agreements;
(xvi) reseller or distributorship agreements, original equipment manufacturer (OEM) agreements, or systems integrator agreements;
(xvii) leases, financing agreements, subleases or other agreement agreements under which Seller the Company is lessor or lessee of any real property or equipment or other tangible property with respect to obligations in excess of $25,000personal property;
(qxviii) Except for licenses, sublicenses and other agreements required to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as be listed in Schedule 2.16(c) of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resourcesCompany Disclosure Schedule; and
(rxix) any other material agreement whether or not contracts with Governmental Entities.
(b) Schedule 2.13 of the Company Disclosure Schedule contains a true, correct and complete list of all Material Contracts numbered as appropriate under subsection (a) hereof. The Company has made in available to the ordinary course of business. True Buyer true and complete copies of all the contracts and other agreements (Material Contracts and all amendments, waivers amendments or other modifications thereto) set forth on thereto or, in the Seller Disclosure Schedule have been furnished to BEAcase of oral Material Contracts, complete and accurate descriptions. Each All of such contracts is the Material Contracts are valid, subsisting, in full force and effect, binding upon Seller, and to the best knowledge of Seller, binding upon the Company and, to the Knowledge of the Company, on the other parties thereto in accordance with their termsparty(ies) thereto. No written notice of termination or amendment of any Material Contract has been given to the Company by any other party thereto. Neither the Company nor, and Seller to the Knowledge of the Company, any other party thereto, is not in default under any of themMaterial Contract, norand, to the best knowledge Knowledge of Sellerthe Company, is any other party to any such contract or other agreement in default thereunder, no event has occurred nor does any condition exist that with notice or lapse of time or both, both would constitute a default by the Company or any such other party thereunder.
(c) There is no Contract or Order to which the Company is a party, exceptsubject or otherwise bound, that would reasonably be expected to prohibit, impair or otherwise limit: (a) any business practice of the Company or any of its present Affiliates or Buyer; (b) any acquisition of property (tangible or intangible) by the Company or any of its present Affiliates or Buyer; (c) the conduct of business by the Company; or (d) the freedom of the Company or any of its present Affiliates or Buyer to engage in any line of business or to compete or do business with any Person, in each casecase whether arising as a result of a change in control of the Company or any of its present Affiliates or Buyer or otherwise. Without limiting the generality of the foregoing, such defaults as would notthe Company has not (x) entered into any Contract under which the Company or any of its present Affiliates or Buyer is restricted from selling, individually licensing, manufacturing or otherwise distributing any of its technology or products or from providing services to customers or potential customers or any class of customers, in any geographic area, during any period of time, or in any segment of the aggregatemarket, have a material adverse effect on (y) granted any Person exclusive rights to sell, license, manufacture or otherwise distribute any of the SellerCompany’s or any of its present Affiliates’ or Buyer’s technology or products in any geographic area or with respect to any customers or potential customers or any class of customers during any period of time or in any segment of the market or (z) entered into any Contract that will bind the Buyer or any of its Affiliates with respect to the Buyer’s or the Buyer’s Affiliates’ own customers, products or services.
Appears in 1 contract
Samples: Exhibit Agreement (PTC Inc.)
Contracts and Other Agreements. Section 3.8 of the Seller Disclosure (a) Schedule 3.12 sets forth a list of the following all written or oral contracts ------------- and other agreements to which Seller a Selling Party is a party or by or to which Seller it is or Seller's any of its assets or properties are bound or subject:
, including without limitation: (ai) any agreement or series of related contracts and agreements requiring aggregate payments after the date hereof by or to Seller of more than $25,000;
(b) any agreement with or for the benefit of any current or former officer, director, stockholder, employee or consultant of Seller;
(c) any agreement with any labor union or association representing any employee of Seller;
employee; (dii) any agreement contracts and agreements (including barter arrangements) for the purchase or sale of materials, supplies, equipmentmerchandise, merchandise equipment or services that contains an escalation, renegotiation or redetermination clause or that obligates Seller to purchase all or substantially all of its requirements of a particular product from a supplier, or services; (iii) contracts and agreements for periodic minimum purchases of a particular product from a supplier;
(e) any agreement for (i) the sale of any of the assets or properties of Seller, other than the Business (except for the sale of medical equipment in the ordinary course of business business) or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such of the assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of relating to the Seller Disclosure Schedule or pursuant to subsection Business; (biv) of this Section 3.8;
(f) any partnership or joint marketing, joint venture agreement;
and partnership agreements; (gv) contracts and agreements under which a Selling Party agrees to indemnify any agreement party or to share any tax liability of surety, guarantee any party; (vi) contracts and other agreements with suppliers for the rebating of charges or indemnification, other than similar arrangements; (vii) contracts and agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000;
(h) any agreement containing covenants of Seller a Selling Party not to compete in any line of business, in any geographic area business or with any person in any geographical area or covenants of any other person not to compete with Seller or a Selling Party in any line of business of Selleror in any geographical area; (iviii) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter);
(j) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or contracts and other similar arrangements;
(k) any agreement with any holder of securities of Seller as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(l) any agreement obligating Seller to deliver services or product enhancements or containing a "most favored nation" pricing clause;
(m) any agreement agreements relating to the acquisition by Seller a Selling Party of any operating business or the capital stock of or other interest in any other person;
; (nix) options for the purchase of any agreement asset, tangible or intangible; (x) contracts and agreements requiring the payment to any person of a brokerage royalty, override or sales similar commission or fee; (xi) contracts and agreements relating to the borrowing of money; (xii) any guaranty, performance or completion bond or surety contract or agreement; (xiii) contracts and agreements for the development, display or promotion of any products or services; (xiv) contracts and agreements for the employment for any period of time whatsoever or in regard to the employment, or restricting the employment, of any salaried employee of a finder's or referral fee (other than arrangements to pay commission or fees to employees Selling Party employed in the ordinary course Business; (xv) outstanding powers of businessattorney executed on behalf of a Selling Party; (xvi) third-party payor agreements (including provider agreements for the Programs);
(o) any agreement or note , managed care agreements, and agreements relating to or evidencing outstanding indebtedness for borrowed money;
the provision of health care, pharmaceuticals, goods and services and (p) any lease, sublease or other agreement under which Seller is lessor or lessee of any real property or equipment or other tangible property with respect to obligations in excess of $25,000;
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources; and
(rxvii) any other material contract or agreement whether or not made in the ordinary course of business. True .
(b) There have been delivered to Purchaser true and complete copies of all of the contracts and agreements set forth or required to be set forth on Schedules 3.8, 3.11 and 3.12 or on any other Schedule, and there are no other ---------------------------- material terms of such contracts or other agreements except as set forth on such copies. Except as disclosed on Schedule 3.12 or on the respective Schedule to ------------- which it pertains, all of such contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on the Seller Disclosure Schedule have been furnished to BEA. Each of such contracts is are valid, subsisting, in full force and effect, binding upon Sellerthe Selling Parties, and and, to the best knowledge of SellerSelling Parties' knowledge, binding upon the other parties thereto and enforceable against the Selling Parties in accordance with their respective terms; and the Selling Parties have satisfied in all material liabilities and obligations thereunder through the date hereof, and Seller is are not in default in any material respect under any of them, nor, to the best knowledge of SellerSelling Parties' knowledge, is any other party to any such contract or other agreement in default thereunder, nor does any condition exist that which, with notice or lapse of time or both, would constitute such a material default. To the Selling Parties' knowledge, no other party to any such contract or other agreement is in default thereunder, nor, to the Selling Parties' knowledge, does any condition exist which, with notice or lapse of time or both, would constitute such a default thereunder, except, in each case, such defaults as would not, individually or in the aggregate, have a material adverse effect on the Seller.
Appears in 1 contract
Samples: Stock Purchase Agreement (Home Health Corp of America Inc \Pa\)
Contracts and Other Agreements. Section 3.8 of the Seller The Seller's Disclosure Schedule sets forth a list all of the following contracts and other agreements (other than the Leases) to which Seller the Company is a party or by which the Company or to which Seller or Seller's its assets or properties are bound or subject:
(a) any agreement or series of related agreements requiring aggregate payments after the date hereof by or to Seller of subject and which involve more than $25,000;
20,000: (bi) any agreement with or for the benefit of any current or former officer, director, stockholder, employee or consultant of Seller;
(c) any agreement contracts and other agreements with any labor union or association representing any employee employees in employment negotiations; (ii) contracts, including but not limited to dealer agreements, having a term of Seller;
(d) any agreement more than one year not entered into in the ordinary course of business for the purchase or sale of materials, supplies, equipmentmerchandise, merchandise equipment or services that contains an escalation, renegotiation or redetermination clause or that obligates Seller to purchase all or substantially all of its requirements of a particular product from a supplier, or services; (iii) contracts and other agreements for periodic minimum purchases of a particular product from a supplier;
(e) any agreement for (i) the sale of any of the assets or properties of Seller, (other than contracts and other agreements in the ordinary course of business business) or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection properties; (biv) of this Section 3.8;
(f) any partnership or joint venture agreement;
and partnership agreements; (gv) contracts or other agreements under which the Company has agreed to indemnify any agreement party or to share any liability of suretyany party including, guarantee or indemnificationwithout limitation, liability with respect to taxes, other than contracts and other agreements regarding the sale of goods in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000;
(h) any agreement containing covenants of Seller not to compete in any line of business, in any geographic area or with any person or covenants of any other person not to compete with Seller or in any line of business of Seller; (ivi) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter);
(j) any agreement contracts and other agreements with customers customers, dealers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
; (kviii) contracts and other agreements containing covenants of the Company not to compete in any agreement line of business or with any holder of securities of Seller as such person in any geographical area; (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(lviii) any agreement obligating Seller to deliver services or product enhancements or containing a "most favored nation" pricing clause;
(m) any agreement contracts and other agreements relating to the acquisition by Seller the Company of any operating business or the capital stock of any other person;
; (nix) options for the sale or purchase of any agreement stock, note or other security; (x) contracts and other agreements requiring the payment to any person of a brokerage royalty, override or sales commission or a finder's or referral fee similar commission; (xi) contracts and other than arrangements to pay commission or fees to employees in the ordinary course of business);
(o) any agreement or note agreements relating to the borrowing of money or evidencing outstanding indebtedness the incurrence of indebtedness; (xii) guarantees, performance or completion bonds and surety agreements; (xiii) contracts of agency, representation, distribution or franchise; and (xiv) contracts for borrowed money;
(p) the employment for any leaseperiod of time whatsoever, sublease or other agreement under which Seller is lessor or lessee restricting the employment, of any real property or equipment or other tangible property with respect to obligations in excess of $25,000;
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which salaried employee. There have been delivered as of to the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources; and
(r) any other material agreement whether or not made in the ordinary course of business. True and complete Purchaser copies of all of the contracts and other agreements (and all amendments, waivers set forth or other modifications thereto) required to be set forth on the Seller Seller's Disclosure Schedule have been furnished to BEA. Each or, if unwritten, accurate summaries of all of the material terms thereof, and there are no other material terms of such contracts is or other agreements except as set forth on such copies and/or summaries. All of such contracts and other agreements are valid, subsisting, in full force and effect, binding upon Seller, and to the best knowledge of Seller, binding upon the Company and, to the Seller's knowledge, the other parties thereto thereto, in accordance with their terms; and neither the Company nor, and Seller is not to the Seller's knowledge, the other parties thereto, are in material default under any of them, nor, to . No approval or consent of any person is needed in order that the best knowledge of Seller, is any contracts and other party to any such contract or other agreement in default thereunder, nor does any condition exist that with notice or lapse of time or both, would constitute a default thereunder, except, in each case, such defaults as would not, individually or in the aggregate, have a material adverse effect agreements set forth on the Seller's Disclosure Schedule continue in full force and effect following the consummation of the transactions contemplated by this Agreement.
Appears in 1 contract
Contracts and Other Agreements. Section 3.8 (a) SECTION 2.10 of the Seller Company Disclosure Schedule sets forth a list of the following contracts and other agreements to which Seller the Company or any Company Subsidiary is a party or by or to which Seller they or Seller's their assets or properties are bound or subject:
(ai) any agreement (A) involving research, development or series the license of related agreements requiring Proprietary Rights (as defined in SECTION 2.12), (B) granting a right of first refusal, or right of first offer or comparable right with respect to Proprietary Rights, (C) relating to a joint venture, partnership or other arrangement involving a sharing of profits, losses, costs or liabilities with another person or entity, (D) providing for the payment or receipt by the Company or a Company Subsidiary of milestone payments or royalties, (E) containing a "most favored nation" pricing or terms clause, or (F) that individually requires aggregate payments after expenditures by the date hereof by or to Seller Company and/or any Company Subsidiary in any one year of more than $25,000;
(bii) any indenture, trust agreement, loan agreement or note that involves or evidences outstanding indebtedness, obligations or liabilities for borrowed money;
(iii) any agreement with of surety, guarantee or for the benefit of any current or former officer, director, stockholder, employee or consultant of Sellerindemnification;
(civ) any agreement that limits or restricts the Company, any Company Subsidiary or any of their affiliates or successors in competing or engaging in any line of business, in any therapeutic area, in any geographic area or with any labor union or association representing any employee of Sellerperson;
(dv) any interest rate, equity or other swap or derivative instrument;
(vi) any agreement obligating the Company to register securities under the Securities Act;
(vii) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation, renegotiation or redetermination clause or that obligates Seller to purchase all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases of a particular product from a supplier;
(e) any agreement for (i) sale of any of the securities, assets or properties of Seller, the Company other than in the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any of such securities, assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8properties;
(fviii) any partnership agreement in which the Company is the purchaser of goods or joint venture agreementservices and that requires less than 30 days' notice to be cancelled by the Company or an assignee of the Company to avoid incurring a liability, premium or penalty;
(g) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000;
(h) any agreement containing covenants of Seller not to compete in any line of business, in any geographic area or with any person or covenants of any other person not to compete with Seller or in any line of business of Seller; (i) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter);
(j) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(k) any agreement with any holder of securities of Seller as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(l) any agreement obligating Seller to deliver services or product enhancements or containing a "most favored nation" pricing clause;
(mix) any agreement relating to the acquisition by Seller the Company of any operating business or the capital stock of any other person;
(nx) any agreement requiring the payment to any person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission or fees to employees in the ordinary course of business)business or providing for sharing of fees, rebating of charges, or similar arrangements;
(oxi) any agreement with any current or note relating former officer, director, stockholder, employee, consultant, agent or other representative of the Company, including any agreement for the payment of fees or other consideration to any entity in which any officer or evidencing outstanding indebtedness for borrowed money;director of the Company has an interest; or
(p) any lease, sublease or other agreement under which Seller is lessor or lessee of any real property or equipment or other tangible property with respect to obligations in excess of $25,000;
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources; and
(rxii) any other material agreement whether or not made in the ordinary course of business. True and complete copies All of all the contracts and other agreements (and all amendments, waivers or other modifications thereto) required to be set forth on in SECTION 2.10 of the Seller Company Disclosure Schedule have been furnished to BEA. Each of such contracts is are valid, subsisting, in full force and effect, binding upon Sellerthe Company or the applicable Company Subsidiary and, and to the best knowledge of Sellerthe Company, binding upon the other parties thereto in accordance with their terms, and Seller is the Company and the Company Subsidiaries have paid in full or accrued all amounts now due from them thereunder, and have satisfied in full or provided for all of their liabilities and obligations thereunder which are presently required to be satisfied or provided for and are not in default under any of them, nor, to the best knowledge of Sellerthe Company, is any other party to any such contract or other agreement in default thereunder, nor does any condition exist that with notice or lapse of time or both, both would constitute a default thereunder, except, . True and complete copies of all of the contracts and other agreements (and all written amendments or other modifications thereto) referred to in each case, such defaults as would not, individually SECTION 2.10 or in SECTION 2.11(a) of the aggregate, Company Disclosure Schedule have a material adverse effect on the Sellerbeen provided previously to Parent.
Appears in 1 contract
Samples: Merger Agreement (Genzyme Corp)
Contracts and Other Agreements. Section 3.8 of the Seller Disclosure Schedule 3.2.30 sets forth a list all of the following contracts and other agreements to which Seller the Company or any Subsidiary is currently a party or by which either is bound or to which Seller or Seller's a material part of their respective assets or properties are bound or subject:
: (ai) any agreement or series of related contracts and other agreements requiring aggregate payments after the date hereof by or to Seller of more than $25,000;
(b) any agreement with or for the benefit of any current or former shareholder or any current officer, director, stockholdertrustee or relative of the foregoing or other affiliate of Seller, the Company or any Subsidiary or with any other current employee or consultant of Seller;
or with an entity in which the Company or any Subsidiary is a controlling person; (cii) any agreement contracts and other agreements with any labor union or association representing any employee of Seller;
employee; (diii) any agreement contracts and other agreements for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation, renegotiation or redetermination clause or that obligates Seller to purchase all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases of a particular product from a supplier;
(e) any agreement for (i) sale of any of the its assets or properties of Seller, other than in the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets of its assets; (iv) joint venture agreements; (v) contracts and other agreements under which it agrees to indemnify any party; (vi) material contracts and other material agreements , except those which can be canceled without liability, premium or properties penalty on not more than thirty (30) days' notice; (vii) contracts and other than stock option and warrant agreements with customers, tenants, distributors or instruments listed in Section 3.3.2 suppliers for the rebating of the Seller Disclosure Schedule charges or other similar arrangements pursuant to subsection (b) of this Section 3.8;
(f) any partnership or joint venture agreement;
(g) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not which payments in excess of $25,000;
US$25,000 have been or may hereafter be made, whether by or to the Company or a Subsidiary; (hviii) any agreement contracts and other agreements containing covenants of Seller the Company or any Subsidiary not to compete in any line of business, in any geographic area business or with any person in any geographical area or covenants of any other person not to compete with Seller the Company or any Subsidiary in any line of business of Selleror in any geographical area; (iix) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter);
(j) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or contracts and other similar arrangements;
(k) any agreement with any holder of securities of Seller as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(l) any agreement obligating Seller to deliver services or product enhancements or containing a "most favored nation" pricing clause;
(m) any agreement agreements relating to the acquisition by Seller the Company or any Subsidiary of any assets, operating business or the capital stock of any other person;
; (nx) contracts and other agreements relating to the management by the Company or any agreement requiring Subsidiary of any real property owned by a third party, or the payment to management by a third party of any person of a brokerage or sales commission or a finder's or referral fee Real Property; (xi) contracts and other than arrangements to pay commission or fees to employees agreements not entered into in the ordinary course of business);
(o) any agreement or note relating business pursuant to or evidencing outstanding indebtedness for borrowed money;
(p) any lease, sublease or other agreement under which Seller is lessor or lessee of any real property or equipment or other tangible property with respect to obligations payments in excess of $25,000;
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which US$25,000 have been delivered as or may hereafter be made; (xii) management, consulting and employment agreements; (xiii) outstanding powers of attorney empowering any person to act on behalf of the date hereof, Company or any agreement that requires Seller to deliver, Subsidiary; or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources; and
(rxiv) any other material agreement contracts or other agreements pursuant to which payments in excess of US$25,000 may, on a contractual basis, hereafter be made, whether by or not to the Company or a Subsidiary. There have been made in the ordinary course of business. True available to Buyer, its affiliates and their representatives true and complete copies of all of the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on the Seller Disclosure Schedule have been furnished to BEA3.2.30 or any other Schedule. Each Except as set forth on Schedule 3.2.30, all of such contracts is valid, subsisting, in full force and effect, binding upon Seller, other agreements are valid and to the best knowledge of Seller, binding upon the Company or any Subsidiary, respectively, and, to the knowledge of the Company, on the other parties thereto thereto, and are enforceable in accordance with their terms. Except as set forth on Schedule 3.2.30, and Seller neither the Company nor any Subsidiary is not in default in any material respect under any of themsuch agreements, nor, to the best knowledge of Sellerthe Company, is any other party to any such contract or other agreement in default thereunderthereunder in any material respect, nor nor, to the knowledge of the Company, does any condition exist that with notice or lapse of time or both, would constitute a material default thereunder, except, in each case, such defaults as would not, individually or in the aggregate, have a material adverse effect on the Seller.
Appears in 1 contract
Samples: Stock Purchase Agreement (General Inspection Laboratories Inc)
Contracts and Other Agreements. (a) Section 3.8 3.11 of the Seller Disclosure Schedule sets forth contains a true and complete list of all of the following contracts and other agreements to which Seller is (each, a party or by or to which Seller or Seller's assets or properties are bound or subject:“Material Contract”):
(ai) any agreement or series of related agreements requiring aggregate payments after the date hereof by or to Seller of more than $25,000rights under which are included in the Assets;
(bii) the liabilities and obligations under which are included in the Assumed Liabilities;
(iii) comprising Organizational Documents of any of the Subject Entities, LIHTC Funds or their respective Subsidiaries or otherwise provides for or governs any joint venture or partnership involving the sharing of the revenue, income, earning or profits of any entity with any Person other than a Subject Entity or a LIHTC Fund or any of their respective Subsidiaries;
(iv) which are material to the Business and to which any of the Subject Entities, LIHTC Funds or their respective Subsidiaries is a party, including any contract or agreement with providing for bridge loan financing to or for the benefit of any of the Subject Entities, LIHTC Funds or their respective Subsidiaries;
(v) to which any of the Subject Entities, LIHTC Funds or their respective Subsidiaries, on the one hand, and any Seller Party or any of its Affiliates (other than any of the Subject Entities, LIHTC Funds or their respective Subsidiaries), on the other hand, is a party and which will not be terminated at or prior to the First Closing (or in the case of Second Closing Interests, the Second Closing);
(vi) which contain covenants not to compete, engage in any line or type of business or conduct business in any geographical area or with any Person that are, or from and after the First Closing (or in the case of Second Closing Interests, the Second Closing) will be, applicable to or binding on the Business or any Subject Entity, LIHTC Fund or any of their respective Subsidiaries;
(vii) is currently in effect with any current or former officerofficer (or individual in a similar position), directordirector (or individual in a similar position) or employee of the Business or any Subject Entity, stockholder, employee LIHTC Fund or consultant any of Sellertheir respective Subsidiaries;
(cviii) provides for any agreement with any labor union Subject Entity, LIHTC Fund or association representing any employee of Seller;
(d) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation, renegotiation or redetermination clause or that obligates Seller to purchase all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases of a particular product from a supplier;
(e) any agreement for (i) sale of any of the their respective Subsidiaries to acquire or dispose of assets or properties of Seller, other than in the ordinary course of business and consistent with past practice;
(ix) which is the Real Property Lease; or
(x) which are otherwise material to the Business.
(b) Except as not would be, and would not reasonably be likely to be, materially adverse to the Business, each Material Contract is in full force and effect and constitutes a legal, valid, binding agreement, enforceable, in accordance with its terms, subject to applicable bankruptcy, insolvency or other similar laws, now or hereinafter in effect, affecting creditors’ rights generally or general principles of equity. The Subject Entities, LIHTC Funds and their respective Subsidiaries, and the Seller Parties and their respective Affiliates (other than the Subject Entities, LIHTC Funds or their respective Subsidiaries), as applicable, have performed all material obligations required to be performed by each of them to date under the Material Contracts, and none of them is (with or without the lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder and, to the knowledge of the Seller Parties, no other party to any Material Contract is (with or without the lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder.
(c) The Sellers have made available to Purchaser true and complete copies (or if none exist, reasonably detailed, complete and accurate written descriptions) of each Material Contract, together with all amendments, modifications and supplements thereto.
(d) To the knowledge of the Seller Parties, no LIHTC Fund or any of its Subsidiaries is in breach or default in any material respect of any provision of (i) its or any other Person’s Organizational Documents or (ii) for any contract or agreement to which any LIHTC Fund or any of its Subsidiaries is a party or is otherwise bound which governs or relates to the grant to any person Indebtedness of any options, rights of first refusal, LIHTC Fund or preferential or similar rights to purchase any such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8;
(f) any partnership or joint venture agreement;
(g) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000;
(h) any agreement containing covenants of Seller not to compete in any line of business, in any geographic area or with any person or covenants of any other person not to compete with Seller or in any line of business of Seller; (i) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter);
(j) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(k) any agreement with any holder of securities of Seller as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(l) any agreement obligating Seller to deliver services or product enhancements or containing a "most favored nation" pricing clause;
(m) any agreement relating to the acquisition by Seller of any operating business or the capital stock of any other person;
(n) any agreement requiring the payment to any person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission or fees to employees in the ordinary course of business);
(o) any agreement or note relating to or evidencing outstanding indebtedness for borrowed money;
(p) any lease, sublease or other agreement under which Seller is lessor or lessee of any real property or equipment or other tangible property with respect to obligations in excess of $25,000;
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources; and
(r) any other material agreement whether or not made in the ordinary course of business. True and complete copies of all the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on the Seller Disclosure Schedule have been furnished to BEA. Each of such contracts is valid, subsisting, in full force and effect, binding upon Seller, and to the best knowledge of Seller, binding upon the other parties thereto in accordance with their terms, and Seller is not in default under any of them, nor, to the best knowledge of Seller, is any other party to any such contract or other agreement in default thereunder, nor does any condition exist that with notice or lapse of time or both, would constitute a default thereunder, except, in each case, such defaults as would not, individually or in the aggregate, have a material adverse effect on the Sellerits Subsidiaries.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Municipal Mortgage & Equity LLC)
Contracts and Other Agreements. (a) Section 3.8 4.10 of the Seller Company Disclosure Schedule sets forth a list of the following contracts and other agreements to which Seller the Company is a party or by which it or to which Seller or Seller's its assets or properties are bound or subject:
(ai) any agreement or series of or related agreements requiring that requires aggregate payments after expenditures by the date hereof by or to Seller Company in any one year of more than CDN $25,00010,000;
(bii) any agreement with or for the benefit of any current or former officer, director, stockholderStockholder, employee or consultant of Sellerthe Company;
(ciii) any agreement with any labor union or association representing any employee of Sellerthe Company;
(div) any indenture, trust agreement, loan agreement or note that involves or evidences outstanding Indebtedness, obligations or liabilities for borrowed money;
(v) any agreement of surety, guarantee or indemnification;
(vi) any agreement that limits or restricts the Company or any of its affiliates or successors in competing or engaging in any line of business, in any geographic area or with any Person;
(vii) any agreement granting to the Company the right to use, or restricting the right of the Company to use any Company Proprietary Right;
(viii) an assignment or license of any Company Proprietary Right;
(ix) any agreement with any customer, supplier or other party for the sharing of fees, the rebating or discounting of charges, the provision of free or underpriced services or other similar arrangements;
(x) any interest rate, equity or other swap or derivative instrument;
(xi) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation, renegotiation or redetermination clause or that obligates Seller to purchase all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases of a particular product from a supplier;
(e) any agreement for (i) sale of any of the assets or properties of Seller, the Company other than in the ordinary course of business consistent with past practice or (ii) for the grant to any person Person of any options, rights of first refusal, or preferential or similar rights to purchase any of such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8properties;
(f) any partnership or joint venture agreement;
(gxii) any agreement in which the Company is the purchaser of surety, guarantee goods or indemnification, other than agreements services that could result in the ordinary course Company or an assignee of business with respect to obligations in an aggregate amount the Company incurring a liability, premium or penalty upon cancellation (whether or not in excess of $25,000;
(h) any agreement containing covenants of Seller not to compete in any line of businesssuch liability, in any geographic area premium or with any person penalty can be avoided by notice or covenants of any other person not to compete with Seller or in any line of business of Seller; (i) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafteraction);
(j) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(k) any agreement with any holder of securities of Seller as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(l) any agreement obligating Seller to deliver services or product enhancements or containing a "most favored nation" pricing clause;
(m) any agreement relating to the acquisition by Seller of any operating business or the capital stock of any other person;
(nxiii) any agreement requiring the payment to any person Person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission or fees to employees in the ordinary course of business)business consistent with past practice;
(oxiv) any agreement with any customer, supplier or note relating to or evidencing outstanding indebtedness for borrowed moneyother party that involves, in the aggregate, more than CDN $10,000 in any one year;
(pxv) any lease, sublease or other agreement under which Seller the Company is lessor or lessee of any real property or equipment or other tangible property with respect to obligations in excess of $25,000;property; or
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources; and
(rxvi) any other material agreement whether agreement, contract or not made in arrangement to which the ordinary course of businessCompany is a party. True and complete copies of all the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on the Seller Company Disclosure Schedule have been furnished to BEABarnabus. Each of All such contracts is and other agreements are valid, subsisting, in full force and effect, binding upon Sellerthe Company, and and, to the best knowledge of Sellerthe Company, binding upon the other parties thereto in accordance with their terms, and, except as disclosed in Section 4.10(a) of the Company Disclosure Schedule, the Company has paid in full or accrued all amounts now due from it thereunder, and Seller has satisfied in full all of its liabilities and obligations thereunder that are presently required to be satisfied and is not in default under any of them, nor, to the best knowledge of Sellerthe Company, is any other party to any such contract or other agreement in default thereunder, nor does any condition exist that with notice or lapse of time or both, both would constitute a default thereunder. Such contracts are not automatically void or terminable by the other party as a result of the entrance by the Company into this Agreement or the consummation of the transactions contemplated hereby or by the Related Agreements.
(b) Except as otherwise disclosed on Section 4.10(b) of the Company Disclosure Schedule, exceptno stockholder, officer, director or Key Employee of the Company nor any "affiliate" or "associate" of such Persons (herein, a "Related Party") is a party to any material agreement with the Company, including, without limitation, any contract, agreement or other arrangement providing for the rental of real or personal property from, or otherwise requiring payments to, any Related Party. Except as disclosed in each caseSection 4.10(b) of the Company Disclosure Schedule, such defaults as would not, individually no employee of the Company or in any Related Party is indebted to the aggregate, have a material adverse effect on Company and the SellerCompany is not indebted to any of its employees or any Related Party.
Appears in 1 contract
Contracts and Other Agreements. Section 3.8 2.14 of the Seller PTI Disclosure Schedule sets forth a correct and complete list all of the following contracts and other agreements to which Seller PTI, any Subsidiary or PTI Asia is a party or by or to which Seller it or Seller's its assets or properties are bound or subject:subject (but not including any Agreements to which other PTI Affiliates may be a party to or bound by unless PTI, any Subsidiary or PTI Asia is also a party or bound):
(a) any agreement or series of related contracts and other agreements requiring aggregate payments after the date hereof by or to Seller of more than $25,000;
(b) any agreement with or for the benefit of any current or former officer, director, stockholdershareholder, employee employee, consultant, agent or consultant other representative of SellerPTI or any PTI Affiliate, and contracts and other agreements for the payment of fees or other consideration to any entity in which PTI or any PTI Affiliate has an interest;
(cb) any agreement contracts and other agreements with any labor union or association representing any employee of SellerPTI or any PTI Affiliate or otherwise providing for any form of collective bargaining;
(dc) any agreement contracts and other agreements for the purchase or sale of materials, supplies, equipment, merchandise or services that contains contain an escalation, renegotiation or redetermination clause or that obligates Seller obligate PTI or any PTI Affiliate to purchase all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases of a particular product from a supplier;
(ed) any agreement contracts and other agreements for (i) the sale of any of the assets or properties of Seller, PTI or any PTI Affiliate other than in the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any of such assets or properties properties;
(e) partnership or joint venture agreements (excluding one-time contracts where PTI works with other than stock option and warrant agreements vendors to provide necessary products or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant services to subsection (b) of this Section 3.8a customer);
(f) contracts with agents or foreign representatives regarding the sales or distribution of products or services of PTI or any partnership or joint venture agreementPTI Affiliate;
(g) contracts or other agreements under which PTI or any agreement PTI Affiliate agrees to act as surety or guarantor for or to indemnify any party or, except for real estate leases, to share the tax liability of suretyany party;
(h) contracts, guarantee options, outstanding purchase orders and other agreements for the purchase of any asset, tangible or indemnificationintangible, other than agreements for the purchase of items for customers or purchases less than $25,000 in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000business;
(h) any agreement containing covenants of Seller not to compete in any line of business, in any geographic area or with any person or covenants of any other person not to compete with Seller or in any line of business of Seller; (i) contracts and other agreements having an aggregate value of not less than $250,000 that cannot by their terms be canceled by PTI or any agreement granting PTI Affiliate and any successor or restricting the right assignee of Seller to use PTI or any Intellectual Property PTI Affiliate without liability, premium or penalty on no less than thirty (as defined hereinafter)30) days notice;
(j) any agreement contracts and other agreements with customers customers, suppliers or suppliers other parties for the sharing of fees, the rebating of charges or other similar arrangements;
(k) contracts and other agreements containing obligations or liabilities of any agreement with any holder kind to holders of the securities of Seller PTI or any PTI Affiliate as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(l) contracts and other agreements containing covenants of PTI or any agreement obligating Seller PTI Affiliate not to deliver services compete in any line of business or product enhancements with any person or containing a "most favored nation" pricing clauseentity or covenants of any other person or entity not to compete with PTI or any PTI Affiliate in any line of business, it being understood that this Section 2.14(l) shall not include confidentiality or secrecy agreements which do not incorporate any covenant not to compete;
(m) any agreement contracts and other agreements relating to the acquisition by Seller PTI or any PTI Affiliate of any operating business or the capital stock of any other personperson or entity;
(n) any agreement contracts and other agreements requiring the payment to any person party of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission or fees to employees in the ordinary course of business)fee;
(o) any agreement or note contracts, indentures, mortgages, promissory notes, debentures loan agreements, guaranties, security agreements, pledge agreements, and other agreements and instruments relating to the borrowing or evidencing outstanding indebtedness for borrowed moneylending of money or securing any such liability;
(p) any leaseagreement or series of related agreements requiring aggregate payments by or to PTI or any PTI Affiliate of more than $25,000 on or after December 31, sublease or other agreement under which Seller is lessor or lessee of any real property or equipment or other tangible property with respect to obligations in excess of $25,0001997;
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections contracts under which PTI or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as of the date hereof, any agreement that requires Seller to deliverPTI Affiliate will acquire or has acquired ownership of, or undertake the development oflicense to, any new productintangible property, customized productincluding software but excluding pre-packaged, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources"off-the-shelf" software; and
(r) any other material contract or other agreement whether or not made in the ordinary course of businessbusiness that has or would be reasonably expected to have a material effect on business or prospects, condition, financial or otherwise, of PTI or any PTI Affiliate, taken as a whole, or any of the assets or properties of PTI or any PTI Affiliate. True There have been delivered or made available to SWI true and complete copies of all of the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on in Section 2.14 of the Seller PTI Disclosure Schedule have been furnished to BEASchedule. Each All of such contracts is and other agreements are valid, subsisting, in full force and effect, binding upon SellerPTI and each Subsidiary and PTI Asia, as applicable, and to the best knowledge of SellerPTI, binding upon the other parties thereto in accordance with their terms, and Seller neither PTI nor any Subsidiary nor PTI Asia is not in default under any of them, nor, to the best knowledge of SellerPTI, is any other party to any such contract or other agreement in default thereunder, nor does any condition exist that constitutes or with notice or lapse of time or both, both would constitute a default thereunder, exceptexcept where any defect, in each caseunenforceability, such defaults as default or condition which could cause a default would not, individually either singly or in the aggregate, have reasonably be expected to cause a material adverse effect on the SellerMaterial Adverse Effect.
Appears in 1 contract
Contracts and Other Agreements. (a) Section 3.8 3.16 of the Seller Disclosure Schedule sets forth contains a true and complete list of all of the following contracts and other agreements to which Seller the Company or any of its Subsidiaries is a party or by or to which Seller or Seller's any of their respective assets or properties are is bound or subject:(each, a “Material Contract”):
(ai) any agreement contract with any Person containing any provision or series covenant prohibiting or materially limiting the ability of related agreements requiring aggregate payments after the date hereof by Company or any of its Subsidiaries to Seller of more than $25,000engage in any business activity or compete with any Person in any geographical area;
(bii) any agreement contract of participation with any bank in any loan or for any sales of assets of the benefit Company or its Subsidiaries except the sale of any current repurchase or former officerreverse repurchase agreements, director, stockholder, employee securities or consultant other similar financial transactions in the ordinary course of Sellerbusiness;
(ciii) any agreement with contract providing for the sale or servicing of any labor union loan or association representing any employee of Sellerother asset which constitutes a “recourse arrangement” under applicable regulation or policy promulgated by a Governmental Authority;
(div) any material partnership, joint venture or shareholders’ contract, or agreement to share profits, with any Person;
(v) any contract or agreement for the acquisition of the securities or any material portion of the assets of any other Person outside the ordinary course of business;
(vi) any contract that provides for the guarantee, surety or similar obligation of any Person’s obligations;
(vii) any contract the primary purpose of which is providing indemnification to any other Person;
(viii) any continuing contract or agreement for the purchase or sale of materials, supplies, equipmentequipment or services, merchandise or services that contains an escalation, renegotiation or redetermination clause or that obligates Seller to purchase all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases of a particular product from a supplierinvolving in each case more than $250,000;
(eix) any contract or agreement for capital expenditures in excess of $250,000 in the aggregate;
(ix) sale any contract related to indebtedness of the Company or any of the assets or properties its Subsidiaries in excess of Seller, $250,000 (other than indebtedness owing to the Company or any of its wholly-owned Subsidiaries);
(xi) any securitization currency exchange, commodities, derivative, interest rate, swap, cap, floor or other interest rate risk management agreement, or other hedging arrangement or agreement or any leasing transaction required to be capitalized by GAAP other than those entered into in the ordinary course of business in connection with the settlement of trades;
(xii) any out of the ordinary course contract, commitment, agreement or arrangement between the Company and/or any of its Subsidiaries, on the one hand, and any (iia) for the grant to current or former employee, officer or director of Company and/or any person of any options, rights of first refusalits Subsidiaries, or preferential or similar rights to purchase any such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8;
(f) any partnership or joint venture agreement;
(g) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000;
(h) any agreement containing covenants of Seller not to compete in any line of business, in any geographic area or with any person or covenants of any other person not to compete with Seller or in any line of business of Seller; (i) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter);
(j) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(k) any agreement with any holder of securities of Seller as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(l) any agreement obligating Seller to deliver services or product enhancements or containing a "most favored nation" pricing clause;
(m) any agreement relating to the acquisition by Seller of any operating business or the capital stock of any other person;
(n) any agreement requiring the payment to any person of a brokerage or sales commission or a finder's or referral fee Affiliate (other than arrangements the Company or any of its Subsidiaries), on the other hand; and
(xiii) any other contract that involves the future payment or obligation by or to pay commission the Company or fees any of its Subsidiaries, or gives rise to employees income or revenues, of more than (a) $1,000,000 over the life of the contract entered in the ordinary course of business);
, or (ob) any agreement or note relating to or evidencing outstanding indebtedness for borrowed money;
(p) any lease, sublease or other agreement under which Seller is lessor or lessee of any real property or equipment or other tangible property with respect to obligations in excess of $25,000;
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for 100,000 over the software industry and that are related to the Seller products which have been delivered as life of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources; and
(r) any other material agreement whether or not made in contract entered outside the ordinary course of business.
(b) Except as would not result in a Business Material Adverse Effect, each Material Contract and Assigned Contract to which the Company or any of its Subsidiaries or, to the extent such contract relates to services provided to the Business, any of its Affiliates, is a party is in full force and effect and constitutes a legal, valid, binding agreement, enforceable against the Company, its Subsidiary or such Affiliate, as applicable, and, to the Knowledge of Seller, each other party thereto, in accordance with its terms. True None of the Company, its Subsidiaries or its Affiliates (to the extent such contract relates to services provided to the Business), as applicable, or, to the Knowledge of Seller, any other party to each such contract is in violation or breach of, or in default under, nor has there occurred an event or condition that with the passage of time or giving of notice (or both) would constitute a default under, or permit the termination of, any such contract, except as would not result in a Business Material Adverse Effect.
(c) Seller has made available to Purchaser true and complete copies of all the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth each contract listed on Section 3.16 of the Seller Disclosure Schedule have been furnished to BEA. Each of such contracts is validand the Assigned Contracts, subsisting, in full force together with all amendments and effect, binding upon Seller, and to the best knowledge of Seller, binding upon the other parties thereto in accordance with their terms, and Seller is not in default under any of them, nor, to the best knowledge of Seller, is any other party to any such contract or other agreement in default thereunder, nor does any condition exist that with notice or lapse of time or both, would constitute a default thereunder, except, in each case, such defaults as would not, individually or in the aggregate, have a material adverse effect on the Sellersupplements thereto.
Appears in 1 contract
Contracts and Other Agreements. Section 3.8 of the Seller Disclosure Schedule 3.11 sets forth a list all of the following contracts and other agreements types of Contracts to which Seller the Company or any of its Subsidiaries is a party or by or to which Seller the Company or Seller's assets any of its Subsidiaries, or their respective assets, properties are or businesses, including the Business, is bound or subject:subject (collectively, the "Material Contracts"):
(a) any agreement all employment agreements and commitments, all consulting or series of related severance agreements requiring aggregate payments after the date hereof by or to Seller of more than $25,000;
(b) any agreement arrangements and all other contracts or agreements, including indemnification agreements, with or for the benefit of any current or former officer, director, stockholderemployee, employee consultant, agent, other representative of the Company or consultant any of Seller;its Subsidiaries or with any Affiliate of the Company or any of its Subsidiaries.
(cb) any agreement contracts and other agreements with any labor union or association representing any employee employee;
(c) contracts and other agreements for the sale of Sellerany of its assets or properties or for the grant to any Person of any preferential rights to purchase any of its assets or properties, in each case in an amount exceeding $25,000;
(d) joint venture and partnership agreements or contracts and other agreements relating to the acquisition by the Company or any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation, renegotiation or redetermination clause or that obligates Seller to purchase all or substantially all of its requirements Subsidiaries of a particular product from a supplier, any operating business or for periodic minimum purchases the capital stock of a particular product from a supplierany other Person;
(e) any agreement for (i) all capitalized leases, pledges, conditional sale or title retention agreements involving the payment of any of the assets or properties of Seller, other more than in the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8$100,000;
(f) any partnership take or joint venture agreementpay or requirements contracts or agreements or any other contracts or agreements requiring the Company or any of its Subsidiaries to pay regardless of whether products or services are received;
(g) contracts and other agreements not cancelable without penalty by the Company or any agreement of suretyits Subsidiaries party thereto on sixty (60) or fewer days' notice calling for an aggregate purchase price or payments to or from the Company or any of its Subsidiaries, guarantee as the case may be, in any one year of more than $25,000 in any one case (or indemnification, other than agreements in the ordinary course aggregate, in the case of business with respect to obligations in an aggregate amount not in excess any related series of $25,000contracts and other agreements);
(h) any agreement containing covenants of Seller not to compete in any line of businesscontracts and other agreements with clients, in any geographic area customers or with any person or covenants of any other person not to compete with Seller or in any line of business of Seller; (i) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter);
(j) any agreement with customers or suppliers Person for the sharing of fees, the rebating of charges or purchase price or other similar arrangements;
(ki) contracts and other agreements containing covenants pertaining to the right to compete or not compete in any agreement line of business or similarly restricting the ability to conduct business with any holder of securities of Seller as such (including, without limitation, Person or in any agreement containing an obligation to register any of such securities under any federal or state securities laws)geographical area;
(lj) all agreements relating to the consignment or lease of personal property (whether the Company or any agreement obligating Seller to deliver services of its Subsidiaries is lessee, sublessee, lessor, or product enhancements or containing a "most favored nation" pricing clausesublessor), other than such agreements that provide for annual payments of less than $25,000;
(mk) any agreement relating to the acquisition by Seller of any operating business or the capital stock of any other person;
(n) any agreement requiring the payment to any person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission or fees to employees in the ordinary course of business);
(o) any agreement or note relating to or evidencing outstanding indebtedness for borrowed money;
(p) any lease, sublease or other agreement under which Seller is lessor or lessee of any real property or equipment or other tangible property with respect to obligations all licences and franchise agreements involving an amount in excess of $25,000;
(ql) Except for all mortgages, indentures, notes, bonds, letter of credit and other agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related relating to the Seller products which have been delivered as borrowing of money, creation of Liens, any indemnity, or the guarantee of the date hereofpayment of liabilities or performance of obligations to or by the Company or any of its Subsidiaries, to or by any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources; andother Person;
(rm) any stockholder agreement, registration rights agreement or any arrangement relating to or affecting the ownership of the common stock or other material agreement whether equity interests of the Company or not made in the ordinary course any of business. its Subsidiaries; and True and complete copies of all of the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on the Seller Disclosure Schedule Material Contracts have been furnished to BEA. Each of such contracts is valid, subsisting, in full force and effect, binding upon Seller, and delivered to the best knowledge Buyer. Except as disclosed on Schedule 3.11, all of the Material Contracts are to the Seller, 's Knowledge binding upon the other parties thereto in accordance with their termsterms and the Company or relevant Subsidiary has satisfied in full or provided for all of its liabilities and obligations thereunder requiring performance prior to the date hereof in all material respects, and Seller is not in default under any of themsuch Material Contract, nor, nor to the best knowledge Seller's Knowledge does any condition exist that with notice or lapse of time or both would constitute such a default. To the Seller's Knowledge, is any no other party to any such contract or other agreement Material Contract is in default thereunder, nor does any condition exist that with notice or lapse of time or both, both would constitute such a default thereunderdefault. None of the other parties to any such Material Contracts has given notice to the Company or relevant Subsidiary that it intends to terminate or materially alter the provisions of such Material Contract. Except as separately identified on Schedule 3.11, except, no approval or consent of any Person is required under any Material Contract in each case, such defaults as would not, individually or in connection with consummation of the aggregate, have a material adverse effect on the Sellertransactions contemplated by this Agreement.
Appears in 1 contract
Contracts and Other Agreements. Section 3.8 of the Seller Disclosure Schedule 3.11 sets forth a list all of the following contracts and other agreements types of Contracts to which Seller the Company or any of its Subsidiaries is a party or by or to which Seller the Company or Seller's assets any of its Subsidiaries, or their respective assets, properties are or businesses, including the Business, is bound or subject:subject (collectively, the "Material Contracts"):
(a) any agreement all employment agreements and commitments, all consulting or series of related severance agreements requiring aggregate payments after the date hereof by or to Seller of more than $25,000;
(b) any agreement arrangements and all other contracts or agreements, including indemnification agreements, with or for the benefit of any current or former officer, director, stockholderemployee, employee consultant, agent, other representative of the Company or consultant any of Seller;its Subsidiaries or with any Affiliate of the Company or any of its Subsidiaries.
(cb) any agreement contracts and other agreements with any labor union or association representing any employee employee;
(c) contracts and other agreements for the sale of Sellerany of its assets or properties or for the grant to any Person of any preferential rights to purchase any of its assets or properties, in each case in an amount exceeding $25,000;
(d) joint venture and partnership agreements or contracts and other agreements relating to the acquisition by the Company or any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation, renegotiation or redetermination clause or that obligates Seller to purchase all or substantially all of its requirements Subsidiaries of a particular product from a supplier, any operating business or for periodic minimum purchases the capital stock of a particular product from a supplierany other Person;
(e) any agreement for (i) all capitalized leases, pledges, conditional sale or title retention agreements involving the payment of any of the assets or properties of Seller, other more than in the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8$100,000;
(f) any partnership take or joint venture agreementpay or requirements contracts or agreements or any other contracts or agreements requiring the Company or any of its Subsidiaries to pay regardless of whether products or services are received;
(g) contracts and other agreements not cancelable without penalty by the Company or any agreement of suretyits Subsidiaries party thereto on sixty (60) or fewer days' notice calling for an aggregate purchase price or payments to or from the Company or any of its Subsidiaries, guarantee as the case may be, in any one year of more than $25,000 in any one case (or indemnification, other than agreements in the ordinary course aggregate, in the case of business with respect to obligations in an aggregate amount not in excess any related series of $25,000contracts and other agreements);
(h) any agreement containing covenants of Seller not to compete in any line of businesscontracts and other agreements with clients, in any geographic area customers or with any person or covenants of any other person not to compete with Seller or in any line of business of Seller; (i) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter);
(j) any agreement with customers or suppliers Person for the sharing of fees, the rebating of charges or purchase price or other similar arrangements;
(ki) contracts and other agreements containing covenants pertaining to the right to compete or not compete in any agreement line of business or similarly restricting the ability to conduct business with any holder of securities of Seller as such (including, without limitation, Person or in any agreement containing an obligation to register any of such securities under any federal or state securities laws)geographical area;
(lj) all agreements relating to the consignment or lease of personal property (whether the Company or any agreement obligating Seller to deliver services of its Subsidiaries is lessee, sublessee, lessor, or product enhancements or containing a "most favored nation" pricing clausesublessor), other than such agreements that provide for annual payments of less than $25,000;
(mk) any agreement relating to the acquisition by Seller of any operating business or the capital stock of any other person;
(n) any agreement requiring the payment to any person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission or fees to employees in the ordinary course of business);
(o) any agreement or note relating to or evidencing outstanding indebtedness for borrowed money;
(p) any lease, sublease or other agreement under which Seller is lessor or lessee of any real property or equipment or other tangible property with respect to obligations all licences and franchise agreements involving an amount in excess of $25,000;
(ql) Except for all mortgages, indentures, notes, bonds, letter of credit and other agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related relating to the Seller products which have been delivered as borrowing of money, creation of Liens, any indemnity, or the guarantee of the date hereofpayment of liabilities or performance of obligations to or by the Company or any of its Subsidiaries, to or by any other Person;
(m) any stockholder agreement, registration rights agreement that requires Seller or any arrangement relating to deliver, or undertake affecting the development of, ownership of the common stock or other equity interests of the Company or any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resourcesof its Subsidiaries; and
(rn) any other material contract and other agreement whether or not made in outside the ordinary course of businessbusiness relating to any one or more of the Company or any of its Subsidiaries and involving an amount in excess of $25,000. True and complete copies of all of the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on the Seller Disclosure Schedule Material Contracts have been furnished to BEA. Each of such contracts is valid, subsisting, in full force and effect, binding upon Seller, and delivered to the best knowledge Buyer. Except as disclosed on Schedule 3.11, all of the Material Contracts are to the Seller, 's Knowledge binding upon the other parties thereto in accordance with their termsterms and the Company or relevant Subsidiary has satisfied in full or provided for all of its liabilities and obligations thereunder requiring performance prior to the date hereof in all material respects, and Seller is not in default under any of themsuch Material Contract, nor, nor to the best knowledge Seller's Knowledge does any condition exist that with notice or lapse of time or both would constitute such a default. To the Seller's Knowledge, is any no other party to any such contract or other agreement Material Contract is in default thereunder, nor does any condition exist that with notice or lapse of time or both, both would constitute such a default thereunderdefault. None of the other parties to any such Material Contracts has given notice to the Company or relevant Subsidiary that it intends to terminate or materially alter the provisions of such Material Contract. Except as separately identified on Schedule 3.11, except, no approval or consent of any Person is required under any Material Contract in each case, such defaults as would not, individually or in connection with consummation of the aggregate, have a material adverse effect on the Sellertransactions contemplated by this Agreement.
Appears in 1 contract
Contracts and Other Agreements. Section 3.8 (a) Except as listed in Schedule 3.1.5(a) or as required by this Agreement, none of the Seller Disclosure Schedule sets forth a list of the following contracts and other agreements to which Seller Protego Entities is a party or by subject to any of the following agreements, whether written or oral, express or implied, which will continue to which Seller bind, or Seller's assets impose any liability or properties are bound other obligation on, any of the Protego Entities or subjecttheir respective businesses after the Closing Date:
(ai) other than as specified in clause (ii) below, any agreement agreement, contract, lease, arrangement, understanding or commitment, or series of related agreements requiring aggregate payments after agreements, contracts, leases or commitments all with the date hereof by same Person or to Seller related Persons, which involves an amount in excess of more than $25,000500,000 on an annualized basis;
(bii) any agreement with pursuant to which any of the Protego Entities (A) has provided any advisory or for the benefit monitoring services or issued any fairness opinion or similar report since January 1, 2003 and (B) has received, or expects to receive, a fee in excess of any current or former officer, director, stockholder, employee or consultant of Seller$750,000;
(ciii) any material agreement pursuant to which any of the Protego Entities receives any percentage of returns on investments made by any Person;
(iv) any agreement, contract, arrangement, understanding or commitment limiting or restraining in any material respect any of the Protego Entities or, to the Knowledge of the Protego Partners, any employee of any of the Protego Entities from engaging in any business, engaging in business in any geographic area or pursuing any strategic initiative or competing in any manner;
(v) any license or other agreement which relates in whole or in part to any Intellectual Property, other than nonmaterial licenses for software programs which are generally commercially available;
(vi) any agreement with any labor union or association representing any employee of Seller;
(d) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation, renegotiation or redetermination clause or that obligates Seller to purchase all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases of a particular product from a supplier;
(e) any agreement for (i) sale employees of any of the assets or properties of SellerProtego Entities, other than in including, without limitation, the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8Protego Plans;
(fvii) any partnership trust indenture, mortgage, promissory note, loan agreement or joint venture agreement;
other contract for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized as a liability in accordance with GAAP (g) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000;
(h) any agreement containing covenants of Seller not to compete in any line of business, in any geographic area or with any person or covenants of any other person not to compete with Seller or in any line of business of Seller; (i) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter“Indebtedness”);
(jviii) any material agreement of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment with customers or suppliers for the sharing of feesrespect to, the rebating obligations, liabilities (whether accrued, absolute, contingent or otherwise) or Indebtedness of charges any other Person;
(ix) other than as specified in clause (vi) above, any contract, agreement, arrangement or understanding between any of the Protego Entities, on the one hand, and the Protego Partners or any other Affiliate of any of the Protego Entities (including Aggero or Acentus but excluding any of the Protego Entities and any portfolio company of DAI), on the other hand;
(x) any material agreement, contract, arrangement, understanding or commitment relating to marketing, revenue sharing or similar arrangements;
(kxi) any agreement, contract, arrangement, understanding or commitment containing “change of control” provisions which would require the consent of a third party in order to consummate the transactions contemplated by this Agreement or would otherwise give right to a termination right on the part of such third party;
(xii) any agreement, contract, arrangement, understanding or commitment relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise);
(xiii) any material agreement, contract, arrangement, understanding or commitment between any of the Protego Entities, on the one hand, and any Governmental Authority, on the other hand (other than governmental licenses or permits);
(xiv) any agreement with any holder of securities of Seller as such (including, without limitation, any agreement containing an obligation Governmental Authority that was entered into prior to register any of such securities under any federal or state securities laws);
(l) any agreement obligating Seller to deliver services or product enhancements or containing a "most favored nation" pricing clause;
(m) any agreement relating to the acquisition by Seller of any operating business or the capital stock of any other person;
(n) any agreement requiring the payment to any person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission or fees to employees in the ordinary course of business);
(o) any agreement or note relating to or evidencing outstanding indebtedness for borrowed money;
(p) any lease, sublease or other agreement under which Seller is lessor or lessee of any real property or equipment or other tangible property compliance with all governmental regulations applicable with respect to obligations in excess of $25,000;such agreement, including regulations requiring a public bidding process; or
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources; and
(rxv) any other material agreement whether agreement, contract, arrangement, understanding or commitment not made in the ordinary course Ordinary Course of business. True Business.
(b) Each of the agreements, commitments, instruments, documents and complete copies undertakings required to be listed in Schedule 3.1.5(a) (the “Protego Contracts”) is valid and enforceable against the Protego Entities and, to the Knowledge of all the contracts Protego Partners, against any other party thereto in accordance with its terms except where any such failure to be valid and enforceable has not had, and would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect with respect to the Protego Entities or except to the extent that such enforcement may be limited by applicable bankruptcy laws and other agreements (and all amendments, waivers or other modifications thereto) set forth on similar laws affecting creditors’ rights generally. None of the Seller Disclosure Schedule have been furnished to BEA. Each of such contracts is valid, subsisting, in full force and effect, binding upon SellerProtego Entities is, and to the best knowledge Knowledge of Sellerthe Protego Partners, binding upon no other party thereto is, in default in the other parties thereto performance, observance or fulfillment of any obligation, covenant or condition contained in accordance with their termsthe Protego Contracts, and Seller is not in default under no event caused by, relating to or affecting any of themthe Protego Entities has occurred which, nor, to the best knowledge of Seller, is with or without any other party to any such contract or other agreement in default thereunder, nor does any condition exist that with notice or lapse of time time, or both, would constitute a default by any of the Protego Entities thereunder or, to the Knowledge of the Protego Partners, would constitute a default by such other party thereunder, except, in each casecase except as has not had, such defaults as and would notnot reasonably be expected to result in, individually or in the aggregate, have a material adverse effect on Material Adverse Effect with respect to the SellerProtego Entities.
Appears in 1 contract
Samples: Contribution and Sale Agreement (Evercore Partners Inc.)
Contracts and Other Agreements. Section 3.8 3.14 of the Seller AutoCyte Disclosure Schedule sets forth a correct and complete list all of the following contracts and other agreements to which Seller is a party or by or to which Seller or Seller's assets or properties are bound or subjectcurrently effective contracts:
(a) any agreement or series of related written contracts and other agreements requiring aggregate payments after the date hereof by or to Seller of more than $25,000;
(b) any agreement with or for the benefit of any current or former officer, director, stockholderstockholder or employee of AutoCyte involving more than $25,000 (provided, employee in the case of a loan by AutoCyte to any such person, the AutoCyte Disclosure Schedule shall list all such loan arrangements, whether or consultant not in writing, involving at least $1,000), and contracts and other agreements for the payment of Sellerfees or other consideration to any entity in which AutoCyte has an interest;
(cb) any agreement contracts and other agreements with any labor union or association representing any employee of SellerAutoCyte or otherwise providing for any form of collective bargaining;
(dc) any agreement contracts and other agreements for the purchase or sale of materials, supplies, equipment, merchandise or services that contains contain an escalation, renegotiation or redetermination clause or that obligates Seller obligate AutoCyte to purchase all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases of a particular product from a supplier;
(ed) any agreement contracts and other agreements for (i) the sale of any of the assets or properties of Seller, AutoCyte other than in the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any of such assets or properties other than stock option and warrant agreements properties;
(e) partnership or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8joint venture agreements;
(f) any partnership contracts with agents or joint venture agreementforeign representatives regarding the sales or marketing of AutoCyte's services or products;
(g) contracts or other agreements under which AutoCyte agrees to act as surety or guarantor for or to indemnify any agreement of surety, guarantee or indemnification, party (other than agreements required indemnification provisions in customer contracts) or to share the ordinary course tax liability of business with respect to obligations in an aggregate amount not in excess of $25,000any party;
(h) any agreement containing covenants of Seller not to compete in any line of businesscontracts, in any geographic area or with any person or covenants options, outstanding purchase orders and other agreements for the purchase of any other person not to compete with Seller material asset, tangible or in any line of business of Seller; intangible;
(i) any agreement granting contracts and other agreements with customers, suppliers or restricting the right of Seller to use any Intellectual Property (as defined hereinafter);
(j) any agreement with customers or suppliers other parties for the sharing of fees, the rebating of charges or other similar arrangementsarrangements other than such contracts entered into in the normal course of business;
(kj) contracts and other agreements containing obligations or liabilities of any agreement with any holder kind to holders of the securities of Seller AutoCyte as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws)) and contracts obligating AutoCyte to issue or repurchase any AutoCyte securities;
(k) contracts and other agreements containing covenants of AutoCyte not to compete in any line of business or with any person or entity or covenants of any other person or entity not to compete with AutoCyte in any line of business;
(l) any agreement obligating Seller to deliver services or product enhancements or containing a "most favored nation" pricing clause;
(m) any agreement contracts and other agreements relating to the acquisition by Seller AutoCyte of any operating business or the capital stock of any other personperson or entity;
(nm) any agreement contracts and other agreements requiring the payment to any person party of a brokerage or sales commission or a finder's or referral fee fee;
(n) contracts, indentures, mortgages, promissory notes, debentures loan agreements, guaranties, security agreements, pledge agreements, and other agreements and instruments relating to the borrowing or lending of money or securing any such liability in an amount greater than arrangements to pay commission or fees to employees in the ordinary course of business)$50,000;
(o) any agreement or note relating series of related agreements requiring aggregate payments by or to or evidencing outstanding indebtedness for borrowed moneyAutoCyte of more than $50,000;
(p) any lease, sublease or other agreement contracts under which Seller is lessor AutoCyte will acquire or lessee of any real property has acquired ownership of, or equipment or license to, intangible property, including software other tangible property with respect to obligations in excess of $25,000;than commercially available end-user licenses; and
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources; and
(r) any other material contract or other agreement whether or not made in the ordinary course of business, the absence of which would have an AutoCyte Material Adverse Effect. True Merger Sub is not a party to any contract or agreement other than the agreement contemplated hereby. There have been delivered or made available to NeoPath true and complete copies of all of the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on in Section 3.14 of the Seller AutoCyte Disclosure Schedule have been furnished to BEASchedule. Each All of such contracts is and other agreements are valid, subsisting, in full force and effect, binding upon SellerAutoCyte, and to the best knowledge of SellerAutoCyte, binding upon the other parties thereto in accordance with their terms, and Seller is not in default under any of them, nor, to the best knowledge of Seller, is any other party to any such contract or other agreement in default thereunder, nor does any condition exist that with notice or lapse of time or both, would constitute a default thereunder, except, in each case, such defaults as would not, individually or in the aggregate, have a material adverse effect on the Seller.parties
Appears in 1 contract
Samples: Merger Agreement (Autocyte Inc)
Contracts and Other Agreements. Section 3.8 4.14 of the Seller Disclosure Schedule PROCEPT DISCLOSURE SCHEDULE sets forth a correct and complete list all of the following currently effective contracts:
(i) written contracts and other agreements to which Seller is a party or by or to which Seller or Seller's assets or properties are bound or subject:
(a) any agreement or series of related agreements requiring aggregate payments after the date hereof by or to Seller of more than $25,000;
(b) any agreement with or for the benefit of any current or former officer, director, stockholderstockholder or employee of Procept involving more than $5,000, employee (provided in the case of a loan by Procept to any such person, the PROCEPT DISCLOSURE SCHEDULE shall list all such loan arrangements, whether or consultant not in writing, involving at least $1,000) and contracts and other agreements for the payment of Sellerfees or other consideration to any entity in which Procept has an interest;
(cii) any agreement contracts and other agreements with any labor union or association representing any employee of SellerProcept or otherwise providing for any form of collective bargaining;
(diii) any agreement contracts and other agreements for the purchase or sale of materials, supplies, equipment, merchandise or services that contains contain an escalation, renegotiation or redetermination clause or that obligates Seller obligate Procept to purchase all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases of a particular product from a supplier;
(eiv) any agreement contracts and other agreements for (i) the sale of any of the assets or properties of Seller, Procept other than in the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any of such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8properties;
(fv) any partnership or joint venture agreementagreements;
(gvi) any agreement contracts with agents or foreign representatives regarding the sales or marketing of surety, guarantee Procept's services or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000products;
(hvii) contracts or other agreements under which Procept agrees to act as surety or guarantor for or to indemnify any agreement containing covenants of Seller not party (other than required indemnification provisions in customer contracts) or to compete in any line of business, in any geographic area or with any person or covenants share the tax liability of any other person not to compete with Seller or in any line of business of Seller; (i) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter)party;
(jviii) contracts, options, outstanding purchase orders and other agreements for the purchase of any agreement material asset, tangible or intangible;
(ix) contracts and other agreements with customers customers, suppliers or suppliers other parties for the sharing of fees, the rebating of charges or other similar arrangementsarrangements other than such contracts entered into in the normal course of business;
(kx) contracts and other agreements containing obligations or liabilities of any agreement with any holder kind to holders of the securities of Seller Procept as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws)) and contracts obligating Procept to issue or repurchase any Procept securities;
(lxi) contracts and other agreements containing covenants of Procept not to compete in any agreement obligating Seller line of business or with any person or entity or covenants of any other person or entity not to deliver services or product enhancements or containing a "most favored nation" pricing clausecompete with Procept in any line of business;
(mxii) any agreement contracts and other agreements relating to the acquisition by Seller Procept of any operating business or the capital stock of any other personperson or entity;
(nxiii) any agreement contracts and other agreements requiring the payment to any person party of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission or fees to employees in the ordinary course of business)fee;
(oxiv) contracts, indentures, mortgages, promissory notes, debentures loan agreements, guaranties, security agreements, pledge agreements, and other agreements and instruments relating to the borrowing or lending of money or securing any such liability;
(xv) any agreement or note relating series of related agreements requiring aggregate payments by or to or evidencing outstanding indebtedness for borrowed moneyProcept of more than $5,000;
(pxvi) any lease, sublease or other agreement contracts under which Seller is lessor Procept will acquire or lessee of any real property or equipment or other tangible property with respect to obligations in excess of $25,000;
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as of the date hereof, any agreement that requires Seller to deliverhas acquired ownership of, or undertake the development oflicense to, any new productintangible property, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resourcesincluding software other than commercially available end-user licenses; and
(rxvii) any other material contract or other agreement whether or not made in the ordinary course of business. True There have been delivered or made available to Pacific true and complete copies of all of the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on in Section 4.14 of the Seller Disclosure Schedule have been furnished to BEAPROCEPT DISCLOSURE SCHEDULE. Each All of such contracts is and other agreements are valid, subsisting, in full force and effect, binding upon SellerProcept, and to the best knowledge of SellerProcept, binding upon the other parties thereto in accordance with their terms. Other than defaults which would not, and Seller either singly or in the aggregate, have a Procept Material Adverse Effect, Procept is not in default under any of themsuch scheduled contracts, nor, to the best knowledge of SellerProcept, is any other party to any such contract or other agreement in default thereunder, nor does any condition exist that constitutes or with notice or lapse of time or both, both would constitute a default thereunder, except, in each case, such defaults as would not, individually or in the aggregate, have a material adverse effect on the Seller.
Appears in 1 contract
Contracts and Other Agreements. Section 3.8 4.15 of the Seller Disclosure Schedule sets forth a list of the following contracts and other agreements Contracts to which Seller the Company or any Company Subsidiary is a party or by or to which Seller any of its assets, properties or Seller's assets or properties securities are bound or subject:subject (each, a "Material Contract"):
(a) any agreement or series of related agreements requiring aggregate payments after the date hereof by or to Seller the Company or any Company Subsidiary of more than $25,000100,000;
(b) any agreement with or for the benefit of any current or former officer, officer or director, stockholdermanager, holder of any security, employee or consultant of Sellerthe Company or any Company Subsidiary under which the Company or any Company Subsidiary had any obligations as of the date of the Original Merger Agreement and which (i) involves an obligation of the Company or any Company Subsidiary to make payments exceeding $100,000 in any year or (ii) involves any severance or termination payments or other obligation other than as required by Law;
(c) any agreement with any labor union or association representing any employee of Sellerthe Company or any Company Subsidiary;
(d) any agreement for the purchase or sale of any materials, supplies, equipment, merchandise or services that contains an escalation, renegotiation or redetermination escalation clause or that obligates Seller the Company or any Company Subsidiary to purchase all or substantially all of its requirements of a particular product or service from a supplier, supplier or for to make periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than thirty (30) days notice (without penalty or premium);
(e) any agreement for (i) the sale of any of the assets assets, properties or properties securities of Seller, the Company or any Company Subsidiary other than in the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets assets, properties or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8securities;
(f) any partnership or joint venture agreement;
(g) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000100,000;
(hg) any agreement containing which contains covenants of Seller the Company or any Company Subsidiary not to compete in any line of business, in any geographic area or with any person Person or covenants of any other person Person (other than employees, former employees, consultants or former consultants of the Company or any Company Subsidiary) not to compete with Seller the Company or any Company Subsidiary or in any line of business of Seller; (i) the Company or any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter)Company Subsidiary;
(jh) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(k) any agreement with any holder of securities of Seller as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(li) any agreement obligating Seller the Company or any Company Subsidiary to deliver services or future product enhancements or containing a "most favored nation" pricing clause;
(mj) any agreement relating to the acquisition by Seller the Company or any Company Subsidiary of any operating business or the capital stock of any other personPerson;
(nk) any agreement requiring the payment to any person Person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission commissions or fees to employees or agents in the ordinary course of business);
(ol) any agreement agreements, notes or note other documents relating to or evidencing outstanding indebtedness of the Company or any Company Subsidiary for borrowed moneymoney (including capitalized lease obligations);
(pm) any lease, sublease or other agreement under which Seller the Company or any Company Subsidiary is lessor or lessee of any real property or equipment or other tangible property with respect to obligations in excess of $25,000property;
(qn) Except for agreements to provide maintenanceany agreement with a change of control provision or otherwise requiring any consent, upgradesapproval, bug fixeswaiver or other action by any Person in connection with the Merger, error corrections the Purchase, the Contribution or the Subsidiary Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as of the date hereofagreement, arrangement or understanding;
(p) any agreement that requires Seller to deliverinvolving the assignment, transfer, license (whether as licensee or undertake the development of, licensor) or pledge or encumbrance of any new product, customized product, substantial upgrade, new version Company Intellectual Property other than those entered into with present or similar work product where such delivery former employees or development requires Seller to utilize substantial personnel or financial resources; and
(r) any other material agreement whether or not made consultants in the ordinary course of businessbusiness consistent with past practice; and
(q) any distribution or sales representative agreement or agreement appointing any agent. True and complete copies of all the contracts and other agreements Material Contracts (and all amendments, waivers or other modifications thereto) set forth on were furnished or made available to the Seller Disclosure Schedule have been furnished Buyer prior to BEAthe date of the Original Merger Agreement. Each of such contracts Material Contract is valid, subsisting, in full force and effect, binding upon Sellerthe Company or any Company Subsidiary, and as applicable, and, to the best knowledge of SellerCompany's Knowledge, binding upon the other parties thereto in accordance with their terms, and Seller neither the Company nor any Company Subsidiary, as applicable, is not in default under any of them, nor, to the best knowledge of SellerCompany's Knowledge, is any other party to any such contract or other agreement Material Contract in default thereunder, nor nor, to the Company's Knowledge, does any condition exist that with notice or lapse of time or both, both would constitute a default thereunder, except, in each caseof the foregoing cases, such defaults as would not, either individually or in the aggregate, have have, or be reasonably likely to have, a material adverse effect on the SellerMaterial Adverse Effect.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Sycamore Networks Inc)
Contracts and Other Agreements. (a) Section 3.8 3.20(a) of the Seller Advisor Disclosure Schedule sets (with paragraph references corresponding to those set forth below) contains a correct and complete list of all of the following contracts and or other agreements arrangements to which Seller the Advisor is a party or by or to which Seller or Seller's any of its assets or properties are bound or subjectis bound, in each case as of the date hereof:
(ai) all contracts or other arrangements providing compensation for employment or consulting services, together with the name, position and rate of compensation of each Person party to such a contract or other arrangement and the expiration date of such contract or other arrangement;
(ii) all contracts or other arrangements with any agreement Person containing any provision or series covenant prohibiting or materially limiting the ability of the Advisor or any of its employees or other Persons who primarily provide services for it or, following the Closing, any of its Affiliates to engage in any business activity or compete with any Person;
(iii) all material partnership, joint venture, shareholders’ or other similar contracts or arrangements with any Person;
(iv) all contracts or other arrangements related agreements requiring aggregate to Indebtedness of the Advisor in excess of $25,000;
(v) all contracts or other arrangements involving payments after the date hereof by or to Seller the Advisor of more than $25,000;
(bvi) any agreement with all contracts or for the benefit of any current or former officer, director, stockholder, employee or consultant of Seller;
(c) any agreement with any labor union or association representing any employee of Seller;
(d) any agreement other arrangements for the purchase or sale of materials, supplies, equipment, merchandise software or services that contains an escalation, renegotiation or redetermination clause or that obligates Seller to purchase all or substantially all of its requirements of a particular product from a supplier, or technology providing for periodic minimum purchases of a particular product from a supplier;
(e) any agreement for (i) sale of any of the assets or properties of Seller, other than in the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8;
(f) any partnership or joint venture agreement;
(g) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not payments in excess of $25,000;
(hvii) any agreement containing covenants of Seller not to compete in any line of business, in any geographic area or with any person or covenants of any other person not to compete with Seller or in any line of business of Seller; (i) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter);
(j) any agreement with customers or suppliers for the sharing of fees, the rebating of charges all contracts or other similar arrangements;
(k) any agreement with any holder of securities of Seller as such (including, without limitation, any agreement containing an obligation arrangements pursuant to register any of such securities under any federal or state securities laws);
(l) any agreement obligating Seller to deliver services or product enhancements or containing which the Advisor is a "most favored nation" pricing clause;
(m) any agreement relating to the acquisition by Seller of any operating business or the capital stock of any other person;
(n) any agreement requiring the payment to any person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission or fees to employees in the ordinary course of business);
(o) any agreement or note relating to or evidencing outstanding indebtedness for borrowed money;
(p) any lease, sublease or other agreement under which Seller is lessor or lessee of any real property or equipment machinery, equipment, motor vehicle, office furniture, fixtures or other tangible personal property with respect to obligations providing for lease payments in excess of $25,000;
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources25,000 per year; and
(rviii) any other material agreement whether or not made in the ordinary course of business. True and complete copies of all the contracts and other agreements (and all amendments, waivers or other modifications theretoarrangements that are material to the Advisor and are not otherwise required to be included in Section 3.20(a) of the Advisor Disclosure Schedule by clauses (i) through (vii).
(b) The Advisory Agreement and each other contract set forth on Section 3.20(a) of the Seller Advisor Disclosure Schedule have been furnished to BEA. Each of such contracts is valid, subsisting, in full force and effecteffect against the Advisor and constitutes a legal, valid and binding upon Selleragreement of the Advisor, and enforceable against the Advisor, and, to the best knowledge Knowledge of Sellerthe Advisor Parent, binding upon the each other parties thereto party thereto, in accordance with their its terms, in each case, except as enforceability may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar Laws or affecting or relating to enforcement or creditors’ rights generally and Seller is not in default under any of them, (ii) general equitable principles. Neither the Advisor nor, to the best knowledge Knowledge of Sellerthe Advisor Parent, is any other party to any such contract is in violation or other agreement breach in any material respect of, or in default thereunderin any material respect under, nor does any to the Knowledge of the Advisor Parent has there occurred an event or condition exist that with notice or lapse the passage of time or giving of notice (or both, ) would constitute a default thereunderunder, exceptor permit the termination of, in the Advisory Agreement or any other contract set forth on Section 3.20(a) of the Advisor Disclosure Schedule.
(c) The Advisor Parent has delivered to the REIT true and complete copies (or if none exist, reasonably complete and accurate written descriptions) of each casecontract required to be listed on Section 3.20(a) of the Advisor Disclosure Schedule, such defaults as would not, individually or in the aggregate, have a material adverse effect on the Sellertogether with all amendments and supplements thereto.
Appears in 1 contract
Samples: Contribution Agreement
Contracts and Other Agreements. Section 3.8 2.13 of the Seller Disclosure ------------------------------ ------------ Schedule sets forth a correct and complete list of all of the following contracts and other agreements to which Seller BLI is a party or by or to which Seller it or Seller's its assets or properties are bound or subject:
(ai) any agreement or series of related contracts and other agreements requiring aggregate payments after the date hereof by or to Seller of more than $25,000;
(b) any agreement with or for the benefit of any current or former officerstockholder, director, stockholderofficer, employee employee, consultant, agent or consultant other representative of SellerBLI, the Key Employees or Triumph and contracts and other agreements for the payment of fees or other consideration to any entity in which any of the foregoing has an interest;
(cii) any agreement contracts and other agreements with any labor union or association representing any employee of SellerBLI or otherwise providing for any form of collective bargaining;
(diii) any agreement contracts and other agreements for the purchase or sale of materials, supplies, equipment, merchandise or services that contains contain an escalation, renegotiation or redetermination clause or that obligates Seller obligate BLI to purchase all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases of a particular product from a supplier;
(eiv) any agreement contracts and other agreements for (i) the sale of any of the assets or properties of Seller, BLI other than in the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any of such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8properties;
(fv) any partnership or joint venture agreementagreements;
(gvi) contracts or other agreements under which BLI agrees to act as surety or guarantor for or to indemnify any agreement party or to share the tax liability of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000any party;
(hvii) any agreement containing covenants of Seller not to compete in any line of businesscontracts, in any geographic area or with any person or covenants options, outstanding purchase orders and other agreements for the purchase of any other person not to compete with Seller asset, tangible or in any line of business of Seller; (i) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter)intangible;
(jviii) contracts and other agreements that cannot by their terms be canceled by BLI and any agreement successor or assignee of BLI without liability, premium or penalty on less than thirty (30) days notice;
(ix) contracts and other agreements with customers customers, suppliers or suppliers other parties for the sharing of fees, the rebating of charges or other similar arrangements;
(kx) contracts, stipulations or agreements with the SBA or the CDOB;
(xi) contracts and other agreements containing obligations or liabilities of any agreement with any holder kind to stockholders or holders of other securities of Seller BLI as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(lxii) contracts and other agreements containing covenants of BLI not to compete in any agreement obligating Seller line of business or with any person or entity or covenants of any other person or entity not to deliver services or product enhancements or containing a "most favored nation" pricing clausecompete with BLI in any line of business;
(mxiii) any agreement contracts and other agreements relating to the acquisition by Seller BLI of any operating business or the capital stock of any other personperson or entity;
(nxiv) any agreement contracts and other agreements requiring the payment to any person party of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission or fees to employees in the ordinary course of business)fee;
(oxv) contracts, indentures, mortgages, promissory notes, debentures loan agreements, guaranties, security agreements, pledge agreements, and other agreements and instruments relating to the borrowing or lending of money or securing any such liability;
(xvi) any agreement or note relating series of related agreements requiring aggregate payments by or to or evidencing outstanding indebtedness for borrowed moneyBLI of more than $10,000;
(pxvii) any leasecontracts under which BLI will acquire or has acquired ownership of, sublease or license to, intangible property, including software;
(xviii) leases, subleases or other agreement agreements under which Seller BLI is lessor or lessee of any real property or equipment or other tangible property with respect to obligations in excess of $25,000;property; or
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources; and
(rxix) any other material contract or other agreement whether or not made in the ordinary course of businessbusiness that has or may have a material effect on BLI's business or prospects, condition, financial or otherwise, or any of the assets or properties of BLI. True There have been delivered or made available to MFC true and complete copies of all of the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on in Section 2.13 of the Seller Disclosure Schedule have been furnished to BEA------------ Schedule. Each All of such contracts is and other agreements are valid, subsisting, in full force and effect, binding upon SellerBLI, and to the best knowledge of SellerBLI, the Key Employees and Triumph, binding upon the other parties thereto in accordance with their terms, and Seller BLI has paid in full or accrued all amounts now due thereunder and has satisfied in full or provided for all of its liabilities and obligations thereunder which are presently required to be satisfied or provided for, and is not in default under any of them, nor, to the best knowledge of SellerBLI, the Key Employees and Triumph, is any other party to any such contract or other agreement in default thereunder, nor does any condition exist that constitutes or with notice or lapse of time or both, both would constitute a default thereunder, except, in each case, such defaults as would not, individually or in the aggregate, have a material adverse effect on the Seller.
Appears in 1 contract
Samples: Asset Purchase Agreement (Medallion Financial Corp)
Contracts and Other Agreements. Section 3.8 3.9 of the Seller Company Disclosure Schedule sets forth a list of the following contracts and other agreements to which Seller the Company is a party or by or to which Seller the Company or Sellerthe Company's assets or properties are bound or subject:
(a) any agreement or series of related agreements requiring aggregate payments after the date hereof by or to Seller the Company of more than $25,000;
(b) any agreement with or for the benefit of any current or former officer, director, stockholder, employee or consultant of Seller;
(c) any agreement with any labor union or association representing any employee of Sellerthe Company;
(dc) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation, renegotiation or redetermination clause or that obligates Seller the Company to purchase all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases of a particular product from a supplier;
(ed) any agreement for (i) sale of any of the assets or properties of Seller, the Company other than in the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties other than stock option and warrant agreements properties;
(e) any partnership, joint venture or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8similar agreement;
(f) any partnership or joint venture agreement;
(g) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000;
(hg) any agreement containing covenants of Seller the Company not to compete in any line of business, in any geographic area or with any person or covenants of any other person not to compete with Seller the Company or in any line of business of Seller; the Company;
(ih) any license relating to Intellectual Property and any other agreement granting or restricting the right of Seller the Company to use any Intellectual Property (as defined hereinafter);
(ji) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(k) any agreement with any holder of securities of Seller as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(lj) any agreement obligating Seller the Company to deliver services or product enhancements or containing a "most favored nation" pricing clause;
(mk) any agreement relating to the acquisition by Seller the Company of any operating business or the capital stock of any other person;
(nl) any agreement requiring the payment to any person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission or fees to employees in the ordinary course of business);
(om) any agreement or note relating to or evidencing outstanding indebtedness for borrowed money;
(pn) The Lease and any other lease, sublease or other agreement under which Seller the Company is lessor or lessee of any real property or equipment or other tangible property with respect to obligations in excess of $25,000;
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources; and
(ro) any other material agreement whether or not made in the ordinary course of business. True and complete copies of all the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on Section 3.9 of the Seller Company Disclosure Schedule have been furnished to BEAPurchaser. Each of such contracts is valid, subsisting, in full force and effect, binding upon Sellerthe Company, and to the best knowledge of Sellerthe Company, binding upon the other parties thereto in accordance with their terms, and Seller the Company is not in default under any of them, nor, to the best knowledge of Sellerthe Company, is any other party to any such contract or other agreement in default thereunder, nor does any condition exist that with notice or lapse of time or both, would constitute a default thereunder, except, in each case, such defaults as would not, individually or in the aggregate, have a material adverse effect on the SellerBusiness of the Company.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Uniphase Corp /Ca/)
Contracts and Other Agreements. Section 3.8 of the Seller Disclosure Schedule sets forth a list of the following contracts DB3/200169974.12
(a) Contracts and other agreements agreements, whether written or binding oral (“Contracts”) described in this subsection, to which Seller the Company is a party or by or to which Seller it or Seller's any of its assets or properties are bound or subjectsubject are referred to herein collectively as “Material Contracts”:
(ai) any agreement or series of related agreements requiring aggregate payments after the date hereof by or to Seller of more than $25,000;
(b) any agreement with or for the benefit of any current or former Member (including any of their respective Affiliates) or any Employee or independent contractor of the Company or with any entity in which any of the foregoing is an officer, directordirector or five percent (5%) or greater member and pursuant to which the Company or such other party has current or future obligations or liabilities in excess of $25,000 in any fiscal year, stockholder, employee or consultant excluding salary and bonuses of SellerEmployees;
(cii) contracts and other agreements pursuant to which the Company or the other party thereto has current or future obligations or liabilities in excess of $25,000 in any agreement fiscal year and that are required to be disclosed on Schedule 2.26 of the Company Disclosure Schedule;
(iii) contracts and other agreements with any labor union union, works council or association representing any employee of SellerEmployee;
(div) any agreement contracts and other agreements for the procurement by the Company (including by purchase or sale license) of software, materials, supplies, equipment, merchandise or services services, or relating to capital expenditures, for an amount in excess $25,000 per annum;
(v) contracts and other agreements for the sale or license by the Company to any third party of software, materials, supplies, equipment, merchandise or services, or relating to capital expenditures, that contains involves an escalationamount or value in excess of $50,000 per annum;
(vi) contracts and other agreements for (A) the sale or (B) the exclusive license of any of the assets or properties of the Company not described in clause (iv) or for the grant to any person of any option, renegotiation right of first refusal, or redetermination clause preferential or that obligates Seller similar right to purchase any of such assets or properties;
(vii) partnership, strategic alliance, joint development, joint marketing and joint venture agreements;
(viii) contracts and other agreements that obligate the Company to purchase or license all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases or licenses of a particular product from a supplier;
(eix) any agreement for (i) sale of any of the assets contracts and other agreements with customers, suppliers, partners or properties of Seller, other than in the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8;
(f) any partnership or joint venture agreement;
(g) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000;
(h) any agreement containing covenants of Seller not to compete in any line of business, in any geographic area or with any person or covenants of any other person not to compete with Seller or in any line of business of Seller; (i) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter);
(j) any agreement with customers or suppliers collaborators for the sharing of fees, the rebating of charges or other similar arrangements, including any Referral Agreements or contracts containing any Most Favored Customer Provision;
(kx) contracts or other agreements under which the Company agrees to indemnify any agreement with party for Tax liabilities or to share the Tax liability of any holder of securities of Seller as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws)party;
(lxi) contracts and other agreements containing any agreement obligating Seller covenant limiting the freedom of the Company or any of its present or future Affiliates to deliver services (A) engage in any line of business or in any geographic territory or to compete with any Person, or which grants to any Person any exclusivity with respect to any geographic territory, any customer, or any product enhancements or containing a "most favored nation" pricing clause;service, (B) solicit for employment, hire or employ any Person, or (C) acquire property (tangible or intangible); DB3/200169974.12
(mxii) any agreement contracts and other agreements relating to the acquisition or disposition by Seller the Company of any operating business or the capital stock or other securities of any other personPerson;
(nxiii) any agreement contracts and other agreements requiring the payment to any person Person of a brokerage commission, fee or sales commission or a finder's or referral fee (royalty, other than arrangements to pay commission or fees to employees Employees in the ordinary course of business);
(oxiv) contracts and other agreements pursuant to which the Company may collect any agreement or note relating to or evidencing outstanding indebtedness for borrowed moneyPersonal Information from any third parties;
(pxv) any leasemortgages, sublease indentures, loan or credit agreements, factoring agreements, promissory notes and other agreements and instruments relating to the borrowing of money or financing or sale of receivables;
(xvi) research, development (whether contracted or shared), and manufacturing agreements;
(xvii) reseller or distributorship agreements, original equipment manufacturer (OEM) agreements, or systems integrator agreements;
(xviii) leases, financing agreements, subleases or other agreement agreements under which Seller the Company is lessor or lessee of any real property or equipment or other tangible property with respect to obligations in excess of $25,000personal property;
(qxix) Except for licenses, sublicenses and other agreements required to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as be listed in Schedule 2.16(c) of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resourcesCompany Disclosure Schedule; and
(rxx) any other material agreement whether or not made in contracts with Governmental Entities.
(b) Schedule 2.13 of the ordinary course Company Disclosure Schedule contains a true, correct and complete list of businessall Material Contracts numbered as appropriate under subsection (a) hereof. True The Company has Made Available to Parent true and complete copies of all the contracts and other agreements (Material Contracts and all amendments, waivers amendments or other modifications thereto) set forth on thereto or, in the Seller Disclosure Schedule have been furnished to BEAcase of oral Material Contracts, complete and accurate descriptions. Each of such contracts is All the Material Contracts are valid, subsisting, in full force and effect, binding upon Seller, and to the best knowledge of Seller, binding upon the Company and, to the Knowledge of the Company, on the other parties thereto in accordance with their termsparty(ies) thereto. No written notice of termination or amendment of any Material Contract has been given to the Company by any other party thereto. Neither the Company nor, and Seller to the Knowledge of the Company, any other party thereto, is not in default under any of themMaterial Contract, norand, to the best knowledge Knowledge of Sellerthe Company, is any other party to any such contract or other agreement in default thereunder, no event has occurred nor does any condition exist that with notice or lapse of time or both, both would constitute a default by the Company or any such other party thereunder. The Company is in compliance with all material delivery requirements, excepttimelines, schedules, time of performance requirements and other material milestones under all Material Contracts. The Company has not incurred any significant cost over-runs on any Material Contract and the Company has no reasonable basis to believe that it will incur any such significant cost over-runs.
(c) There is no Contract or Order to which the Company is a party, subject or otherwise bound, that would reasonably be expected to prohibit, impair or otherwise limit: (a) any business practice of the Company or any of its present Affiliates or Buyer; (b) any acquisition of property (tangible or intangible) by the Company or any of its present Affiliates or Buyer or Parent; (c) the conduct of business by the Company; or (d) the freedom of the Company or any of its present Affiliates or Buyer or Parent to engage in any line of business or to compete or do business with any Person, in each casecase whether arising as a result of a change in control of the Company or any of its present Affiliates or Buyer or Parent or otherwise. Without limiting the generality of the foregoing, such defaults as would notthe Company has not (x) entered DB3/200169974.12 into any Contract under which the Company or any of its present Affiliates or Buyer or Parent is restricted from selling, individually licensing, manufacturing or otherwise distributing any of its technology or products or from providing services to customers or potential customers or any class of customers, in any geographic area, during any period of time, or in any segment of the aggregatemarket, have a material adverse effect on (y) granted any Person exclusive rights to sell, license, manufacture or otherwise distribute any of the SellerCompany’s or any of its present Affiliates’ or Buyer’s or Parent’s technology or products in any geographic area or with respect to any customers or potential customers or any class of customers during any period of time or in any segment of the market or (z) entered into any Contract that will bind Buyer or any of its Affiliates with respect to Buyer’s or Buyer’s Affiliates’ own customers, products or services.
Appears in 1 contract
Samples: Merger Agreement (PTC Inc.)
Contracts and Other Agreements. Section 3.8 3.9 of the Seller Company Disclosure Schedule sets forth a list of the following contracts and other agreements to which Seller the Company is a party or by or to which Seller the Company or Sellerthe Company's assets or properties are bound or subject:
(a) any agreement or series of related agreements requiring aggregate payments after the date hereof by or to Seller the Company of more than $25,00020,000;
(b) any agreement with or for the benefit of not terminable (without penalty) at any current or former officer, director, stockholder, employee or consultant of Sellertime upon ninety (90) days' prior notice;
(c) any agreement with any labor union or association representing any employee of Sellerthe Company;
(d) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation, renegotiation or redetermination clause or that obligates Seller the Company to purchase all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases of a particular product from a supplier; or which obligates the Company to supply all or substantially all of a customer's requirements;
(e) any agreement for the distribution of the Company's products, including but not limited to any agreement appointing any Person as a sales representative for the Company's products or services;
(f) any agreement (i) for sale of any of the assets or properties of Sellerthe Company, other than sales of inventory in the ordinary course of business business, or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8properties;
(fg) any partnership or partnership, joint venture or similar agreement;
(gh) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000;
(hi) any agreement containing covenants of Seller the Company not to compete in any line of business, in any geographic area or with any person or covenants of any other person not to compete with Seller the Company or in any line of business of Seller; the Company;
(ij) any license relating to Intellectual Property (as hereinafter defined) and any other agreement granting or restricting the right of Seller the Company to use any Intellectual Property (as defined hereinafterother than licenses for off-the- shelf software and other customary enterprise and systems software licenses used in the Company's information technology systems);
(jk) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(k) any agreement with any holder of securities of Seller as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(l) any agreement obligating Seller the Company to deliver services or product enhancements or containing a "most favored nation" pricing clause;
(m) any agreement relating to the acquisition by Seller the Company of any operating business or the capital stock of any other person;
(n) any agreement requiring the payment to any person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission or fees to employees in the ordinary course of business);
(o) any agreement or note relating to or evidencing outstanding indebtedness for borrowed money;
(p) any lease, sublease or other agreement under which Seller the Company is lessor or lessee of any real property or equipment or other tangible property with respect to obligations remaining after the date hereof in excess of $25,000;20,000; and
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related any other agreement material to the Seller products which have been delivered as of the date hereofCompany, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources; and
(r) any other material agreement whether or not made in the ordinary course of business. True and complete copies of all the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on Section 3.9 of the Seller Company Disclosure Schedule have been furnished to BEAPurchaser. Each of such contracts is valid, subsisting, in full force and effect, binding upon Sellerthe Company, and and, to the best knowledge of Sellerthe Company, binding upon the other parties thereto in accordance with their terms, and Seller the Company is not in default material breach under any of them, nor, to the best knowledge of Sellerthe Company, is any other party to any such contract or other agreement in default material breach thereunder, nor does any condition exist that with notice or lapse of time or both, would constitute a default material breach thereunder, except, in each case, such defaults as would not, individually or in the aggregate, have a material adverse effect on the Seller.
Appears in 1 contract
Contracts and Other Agreements. (a) Section 3.8 4.16 of the Seller Company Disclosure Schedule sets forth a list as of the following contracts date of this Agreement each contract and other agreements agreement as described below (whether or not in writing) which is currently in effect (unless indicated otherwise below) to which Seller the Company or its Subsidiaries is a party or by or to which Seller or Seller's its assets or properties are bound bound, excluding agreements with portfolio companies included in the Company's or subjectits Subsidiaries' investment portfolios:
(ai) any agreement or series of related contracts and other agreements requiring aggregate payments after the date hereof by or to Seller of more than $25,000;
(b) any agreement with or for the benefit of any current or former officer, director, stockholderemployee, employee consultant, agent or consultant other representative of Sellerthe Company, other than pursuant to Plans described in Section 4.23 of the Company Disclosure Schedule;
(cii) any agreement contracts and other agreements with any labor union or association representing any employee of Selleremployee;
(diii) any agreement contracts and other agreements for the purchase or sale of materialsequipment or services, supplies, equipment, merchandise which involve the receipt or services that contains payment by the Company or its Subsidiaries of an escalation, renegotiation or redetermination clause or that obligates Seller to purchase all or substantially all amount in excess of its requirements $2,000 per month (in the aggregate in the case of a particular product from a supplier, or for periodic minimum purchases any related series of a particular product from a suppliercontracts and other agreements);
(eiv) any agreement contracts and other agreements for (i) the sale of any of the assets or properties of Seller, other than in the ordinary course of business Company or (ii) its Subsidiaries or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such of the assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule Company or pursuant to subsection (b) its Subsidiaries, which involve the receipt or payment by the Company or its Subsidiaries of this Section 3.8;
(f) any partnership or joint venture agreement;
(g) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,00010,000 (in the aggregate in the case of any related series of contracts and other agreements);
(hv) contracts and other agreements calling for an aggregate purchase price or payments in any agreement one year of more than $10,000 payable by the Company or its Subsidiaries in any one case (in the aggregate in the case of any related series of contracts and other agreements);
(vi) contracts and other agreements, whether or not currently in effect, relating to the acquisition by the Company or its Subsidiaries of any business of, or the disposition of any business involving the Company or its Subsidiaries to, any other person;
(vii) contracts relating to the disposition or acquisition of any investment or of any interest in any person, which involved the receipt or payment by the Company or its Subsidiaries of an amount in excess of $10,000 (in the aggregate in the case of any related series of contracts and other agreements);
(viii) joint venture and similar agreements which would involve the receipt or payment by the Company or its Subsidiaries of an amount in excess of $50,000 (in the aggregate in the case of any related series of contracts or other agreements);
(ix) contracts and other agreements, whether or not currently in effect, under which the Company or its Subsidiaries agreed to indemnify any party or to share tax liability of any party, which could involve the payment by the Company or its Subsidiaries of an amount in excess of $10,000 (in the aggregate in the case of any related series of contracts or other agreements);
(x) contracts and other agreements containing covenants of Seller the Company or its Subsidiaries, or, to the Company's knowledge, its officers, directors or employees, not to compete in or solicit employees in any line of business, in any geographic area business or with any person in any geographical area or covenants of any other person not to compete with Seller or solicit employees from the Company in any line of business of Seller; (i) or in any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter)geographical area;
(jxi) contracts and other agreements relating to the making of any agreement with customers or suppliers for the sharing of fees, the rebating of charges loan or other similar arrangementsextension of credit by the Company or its Subsidiaries or of any loan by the Company or its Subsidiaries to a stockholder, officer or director of the Company or its Subsidiaries or from a stockholder of the Company to the Company;
(kxii) contracts and other agreements relating to the borrowing of money by, or indebtedness of, the Company or its Subsidiaries or the direct or indirect guaranty by the Company or its Subsidiaries of any agreement with obligation or indebtedness of any holder other person or Governmental Entity (other than any accounts receivable or accounts payable of securities of Seller as such (the Company or its Subsidiaries), including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);any
(la) any agreement obligating Seller to deliver services or product enhancements or containing a "most favored nation" pricing clause;
(m) any agreement arrangement relating to the acquisition by Seller maintenance of any operating business compensating balances, (b) agreement or the capital stock arrangement with respect to lines of credit, (c) agreement to advance or supply funds to any other person;
(n) any agreement requiring the payment to any person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission or fees to employees in the ordinary course of business, (d) agreement to pay for property, products or services of any other person even if such property, products or services are not conveyed, delivered or rendered, (e) keep-well, make-whole or maintenance of working capital or earnings or similar agreement, and (f) guaranty with respect to any lease or other similar periodic payments to be made by any such person;
(xiii) contracts and other agreements relating to the provision by or to the Company of third party management or administration services, which involve the receipt or payment by the Company or its Subsidiaries of an amount in excess of $10,000 (in the aggregate in the case of any related series of contracts and other agreements);
(oxiv) any agreement or note relating to or evidencing outstanding indebtedness for borrowed money;
(p) any lease, sublease or other agreement under each Lease and lease of personal property which Seller is lessor or lessee of any real property or equipment or other tangible property with respect to obligations requires annual lease payments in excess of $25,00010,000;
(qxv) Except for contracts and other agreements pursuant to provide maintenance, upgrades, bug fixes, error corrections which the Company or similar work product that are ordinary its Subsidiaries obtains or grants insurance or reinsurance;
(xvi) contracts and customary for other agreements between the software industry Company or its Subsidiaries and that are related to the Seller products any Governmental Entity;
(xvii) contracts and other agreements which have been delivered as require payments generated by a change in control of the date hereofCompany;
(xviii) contracts and other agreements with any stockholder, any agreement that requires Seller to deliver, director or undertake officer of the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resourcesCompany; and
(rxix) any contracts and other material agreement agreements, whether or not made currently in the ordinary course of business. True and complete copies of all the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on the Seller Disclosure Schedule have been furnished to BEA. Each of such contracts is valid, subsisting, in full force and effect, binding upon Seller, and relating to the best knowledge disposal of Seller, binding upon the other parties thereto in accordance with their terms, and Seller is not in default under any of them, nor, to the best knowledge of Seller, is any other party to any such contract controlled or other agreement in default thereunder, nor does any condition exist that with notice hazardous substance or lapse of time or both, would constitute a default thereunder, except, in each case, such defaults as would not, individually or in the aggregate, have a material adverse effect on the Sellerwaste.
Appears in 1 contract
Contracts and Other Agreements. (a) Section 3.8 2.12 of the Seller Disclosure Schedule (indicating in each case which of clauses (i) through (xv) is applicable) sets forth a list of the following contracts all contracts, commitments and other agreements (whether written or oral) related to the Business to which Seller is a party or by or to which Seller or Seller's assets or properties are it is bound or subjectin connection with the Business (collectively, the “Contracts”), including, without limitation, the following:
(ai) any agreement or series of related agreements requiring aggregate payments after relating to the date hereof by or to Seller of more than $25,000Intellectual Property;
(bii) any agreement related to the Business with customers or for other purchasers of goods or services from Seller;
(iii) any agreement related to the benefit Business in which Seller is the purchaser of goods or services;
(iv) any distributor, sales representative or similar agreement related to the Business; [*] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. Confidential treatment has been requested with respect to this information.
(v) any agreement related to the Business with any current or former officer, director, stockholder, employee member or consultant manager of Seller, or with any Affiliate of any of such Persons;
(cvi) any indenture, trust agreement, loan agreement or note that involves or evidences outstanding Indebtedness, obligations or liabilities for borrowed money or any agreement of surety, guarantee or indemnification, in each case to the extent related to the Business;
(vii) any agreement with any labor union or association representing any employee of Seller;
(dother than this Agreement) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation, renegotiation or redetermination clause or that obligates Seller to purchase all or substantially all of its requirements disposition of a particular product from a supplier, or for periodic minimum purchases of a particular product from a supplier;
(e) any agreement for (i) sale of any material portion of the assets or properties of SellerPurchased Assets, other than for the sale of inventory in the ordinary course of business or business;
(iiviii) for the any grant to any person Person of any options, rights of first refusal, right of exclusive negotiation or preferential or similar rights to purchase any such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8Purchased Assets;
(fix) any partnership or joint venture agreement;
(g) except as provided in this Agreement, any agreement of surety, guarantee that limits or indemnification, other than agreements in restricts the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000;
(h) any agreement containing covenants of Seller not to compete Business from competing or engaging in any line of business, or in any geographic area or with any person or covenants of Person;
(x) any other person not employment and consulting agreements, non-competition, confidentiality, non-solicitation and similar agreements, in each case with respect to compete with Seller or in any line of business of Seller; the Business;
(ixi) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter);
(j) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(k) any agreement with any holder of securities of Seller as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(l) any agreement obligating Seller to deliver services or product enhancements or containing a "most favored nation" pricing clause;
(m) any agreement relating related to the acquisition by Seller of any operating business or the capital stock of any other person;
(n) any agreement Business requiring the payment to any person Person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission or fees to employees in the ordinary course of business)fee;
(o) any agreement or note relating to or evidencing outstanding indebtedness for borrowed money;
(pxii) any lease, sublease or other agreement under which Seller is lessor or lessee of any real or personal property or equipment or other tangible property with respect to obligations in excess of $25,000;
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for used by the software industry and that are related to the Seller products which have been delivered as of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resourcesBusiness; and
(rxiii) any other material agreement whether agreements related to the Business to which Seller is a party.
(b) Seller has delivered to Buyer or not made in the ordinary course of business. True its representatives true and complete copies of all the contracts written Contracts and other agreements accurate summaries of all oral Contracts (and all amendments, waivers amendments or other modifications thereto) set forth on the Seller Disclosure Schedule have been furnished to BEA). Each of such contracts is All Contracts are valid, subsisting, in full force and effecteffect and binding against Seller and, binding upon Seller, and to the best knowledge of Seller, binding upon the other parties thereto in accordance with their respective terms. Seller has paid in full all amounts now due from it under all such Contracts, and has satisfied in full or provided for all of its Liabilities thereunder that are presently required to be satisfied or provided for. None of Seller is not in default under any of them, noror, to the best knowledge of Seller’s knowledge, is any other party to thereto, is in default of any of its obligations under any such contract or other agreement in default thereunderContract, nor does any condition exist that with notice or lapse of time or both, both would constitute a default thereunder, except, in each case, such defaults as would not, individually or in the aggregate, have a material adverse effect on the Seller.
Appears in 1 contract
Contracts and Other Agreements. Section 3.8 of the Seller Disclosure Schedule 2.14 sets forth a true and correct list of the following kinds of contracts and other agreements to which Seller the Company is a party or by or to which Seller any of its assets, properties or Seller's assets or properties securities are bound or subject:
(a) any agreement or series of related agreements requiring aggregate payments after the date hereof by or to Seller the Company of more than $25,0005,000 during any consecutive twelve (12) month period;
(b) any agreement with or for the benefit of any current or former officer, director, stockholderholder of any security, employee or consultant of Sellerthe Company under which the Company has any obligations as of the date hereof (other than agreements listed pursuant to Section 2.14(o));
(c) any agreement with any labor union or association representing any employee of Sellerthe Company;
(d) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that (i) contains an escalation, renegotiation or redetermination escalation clause or that obligates Seller the Company to purchase all or substantially all of its requirements of a particular product or service from a supplier, supplier or for (ii) is not terminable on thirty (30) days notice or less (without penalty or premium) and requires Company to make periodic minimum purchases of a particular product or service from a supplier;
(e) any agreement for (i) the sale of any of the assets or properties of Sellerthe Company, other than in the ordinary course of business business, or (ii) for the grant to any person Person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8properties;
(f) any partnership or joint venture agreement;
(g) any agreement of surety, guarantee or indemnification, other than indemnification provisions in customer agreements that are limited to amount paid to the Company that were entered into in the ordinary course of business with respect and that conform to obligations in an aggregate amount not in excess the Company’s standard form of $25,000customer agreement, a copy of which has been provided to the Buyer;
(hg) any agreement containing which contains covenants of Seller the Company not to compete in any line of business, in any geographic area or with any person Person or covenants of any other person Person not to compete with Seller the Company or in any line of business of Seller; (i) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter)Company;
(jh) any agreement with customers or suppliers for the sharing of fees, royalties or other income, the rebating of charges or other similar arrangements;
(k) any agreement with any holder of securities of Seller as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(li) any agreement obligating Seller the Company to deliver maintenance services or future product enhancements or containing a "“most favored nation" ” pricing clause;
(mj) any agreement relating to the acquisition by Seller the Company of any operating business or the capital stock of any other personPerson;
(nk) any agreement requiring the payment to any person Person of a brokerage or sales commission or a finder's ’s or referral fee (other than arrangements to pay commission or fees commissions to employees in the ordinary course of businessbusiness pursuant to terms of commission plans that have been provided to the Buyer);
(ol) any agreement or note relating to or evidencing outstanding indebtedness of the Company for borrowed money;
(pm) any lease, sublease or other agreement under which Seller the Company is lessor or lessee of any real property or equipment or other tangible property property;
(n) any agreement with a change of control provision or otherwise requiring consent with respect to obligations in excess of $25,000the transactions contemplated by this Agreement;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any distribution or sales representative agreement or agreement appointing any agent;
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources; and
(r) any other material agreement whether or not made in the ordinary course of business;
(r) any agreement under which the Company entered into an exclusive arrangement of any nature with any Person; and
(s) any agreement under which the Company has been prepaid for goods or services not yet delivered by Company. True and complete copies of all the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on the Seller Disclosure Schedule 2.14 have been furnished to BEAthe Buyer. Each of such contracts and other agreements is valid, subsisting, in full force and effect, binding upon Sellerthe Company and, and to the best knowledge of SellerCompany’s Knowledge, binding upon the other parties thereto in accordance with their terms, and Seller the Company is not in material breach of or material default under any of them, nor, to the best knowledge of SellerCompany’s Knowledge, is any other party to any such contract or other agreement in material breach of or material default thereunder, nor does any condition exist that with notice or lapse of time or both, would constitute a default thereunder, except, in each case, such defaults as would not, individually or in the aggregate, have a material adverse effect on the Seller.
Appears in 1 contract
Samples: Purchase Agreement (Banks.com, Inc.)
Contracts and Other Agreements. Section 3.8 of the Seller Disclosure Schedule SCHEDULE 3.11 sets forth a list all of the following currently effective contracts and other agreements to which Seller Control is a party or by or to which Seller it or Seller's its assets or properties are bound or subject:subject (and under which Control has current or future rights or obligations):
(a) any agreement or series of related contracts and other agreements requiring aggregate payments after the date hereof by or to Seller of more than $25,000;
(b) any agreement with or for the benefit of any current or former officer, director, stockholder, employee employee, consultant, agent or consultant other representative of SellerControl;
(cb) any agreement contracts and other agreements with any labor union or association representing any employee of SellerControl;
(dc) any agreement contracts and other agreements for the purchase or sale of materials, supplies, equipment, merchandise or services that contains contain an escalation, renegotiation or redetermination clause or that obligates Seller obligate Control to purchase all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases of a particular product from a supplier;
(ed) any agreement contracts and other agreements for (i) the sale of any of the assets or properties of Seller, Control other than in the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any of such assets or properties other than stock option and warrant agreements properties;
(e) partnership or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8joint venture agreements;
(f) contracts or other agreements under which Control agrees to indemnify any partnership party for tax liabilities or joint venture agreementto share the tax liability of any party;
(g) any agreement of surety, guarantee or indemnification, contracts and other than agreements in which Control is the ordinary course purchaser of business with respect to obligations in goods or services and calling for an aggregate amount not purchase price or payments in excess any one year of more than $25,00010,000 in any one case (or in the aggregate, in the case of any related series of contracts and other agreements);
(h) contracts and other agreements in which Control is the purchaser of goods or services and that require more than thirty days notice to be cancelled by Control or an assignee of Control (in order to avoid incurring any agreement containing covenants of Seller not to compete in any line of businessliability, in any geographic area premium or with any person or covenants of any other person not to compete with Seller or in any line of business of Seller; (i) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafterpenalty);
(ji) any agreement contracts and other agreements with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(kj) contracts and other agreements containing obligations or liabilities of any agreement with any holder kind to holders of the securities of Seller Control as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(lk) contracts and other agreements containing covenants of Control not to compete in any agreement obligating Seller line of business or with any person or covenants of any other person not to deliver services compete with Control or product enhancements or containing a "most favored nation" pricing clausein any line of business;
(ml) any agreement contracts and other agreements relating to the acquisition by Seller Control of any operating business or the capital stock of any other person;
(m) options for the purchase of any asset, tangible or intangible;
(n) any agreement contracts and other agreements requiring the payment to any person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission or fees to employees in the ordinary course of business);
(o) contracts and other agreements for the payment of fees or other consideration to any agreement officer or note relating director of Control or to or evidencing outstanding indebtedness for borrowed moneyany other entity in which any of the foregoing has an interest;
(p) any leasecontracts and other agreements relating to the borrowing of money;
(q) distributorship or licensing agreements;
(r) contracts with purchasers of services from Control;
(s) leases, sublease subleases or other agreement agreements under which Seller Control is lessor or lessee of any real property or equipment or other tangible property with respect to obligations in excess of $25,000;property; or
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources; and
(rt) any other material contract or agreement whether or not made in the ordinary course of business. True There have been made available to MAXIMUS true and complete copies of all of the contracts and other agreements (and all written amendments, waivers or other modifications thereto) set forth on the Seller Disclosure Schedule have been furnished to BEASCHEDULE 3.11. Each All of such contracts is valid, subsisting, in full force and effect, other agreements are valid and binding upon Seller, and to the best knowledge of Seller, binding upon the other parties thereto Control in accordance with their terms, and Seller Control is not in default under any material term of them, nor, to the best knowledge of SellerControl and the Stockholders, is any other party to any such contract or other agreement in default thereunder, nor nor, to the best knowledge of Control and the Stockholders, does any condition exist that with notice or lapse of time or both, both would constitute a default thereunder, except, in each case, such defaults as would not, individually or in the aggregate, have a material adverse effect on the Seller.
Appears in 1 contract
Samples: Merger Agreement (Maximus Inc)
Contracts and Other Agreements. Section 3.8 of the Seller Disclosure Schedule sets forth a list of the following contracts (a) Contracts and other agreements agreements, whether written or binding oral (“Contracts”) described in this subsection, to which Seller the Company is a party or by or to which Seller it or Seller's any of its assets or properties are bound or subjectsubject are referred to herein collectively as “Material Contracts”:
(ai) any agreement or series of related agreements requiring aggregate payments after the date hereof by or to Seller of more than $25,000;
(b) any agreement with or for the benefit of any current or former Stockholder (including, to the Company’s Knowledge, any of their respective Affiliates) or any Employee or individual independent contractor of the Company or to the Company’s Knowledge, with any entity in which any of the foregoing is an officer, directordirector or five percent (5%) or greater Stockholder and pursuant to which the Company or such other party has current or future obligations or liabilities in excess of $50,000 in any fiscal year, stockholder, employee or consultant excluding salary and bonuses of SellerEmployees;
(cii) contracts and other agreements pursuant to which the Company or the other party thereto has current or future obligations or liabilities in excess of $50,000 in any agreement fiscal year and that are required to be disclosed on Schedule 2.26 of the Company Disclosure Schedule;
(iii) contracts and other agreements with any labor union union, works council or association representing any employee of SellerEmployee;
(div) any agreement contracts and other agreements for the procurement by the Company (including by purchase or sale license) of software, materials, supplies, equipment, merchandise or services services, for an amount in excess of $100,000 per annum;
(v) contracts and other agreements for the sale or license by the Company to any third party of software, materials, supplies, equipment, merchandise or services, or relating to capital expenditures, that contains an escalationinvolves recurring subscription or license revenue in excess of $200,000 per annum;
(vi) contracts and other agreements for the exclusive license of any of the assets or properties of the Company not described in clause (v) or for the grant to any person of any option, renegotiation right of first refusal, or redetermination clause preferential or that obligates Seller similar right to purchase any of such assets or properties;
(vii) strategic partnership, alliance, joint development and joint marketing agreements, and joint venture agreements;
(viii) contracts and other agreements that obligate the Company to purchase or license all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases or licenses of a particular product from a supplier;
(eix) any agreement for (i) sale of any of the assets contracts and other agreements with customers, suppliers, partners or properties of Seller, other than in the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8;
(f) any partnership or joint venture agreement;
(g) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000;
(h) any agreement containing covenants of Seller not to compete in any line of business, in any geographic area or with any person or covenants of any other person not to compete with Seller or in any line of business of Seller; (i) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter);
(j) any agreement with customers or suppliers collaborators for the sharing of fees, the rebating of charges or other similar arrangementsarrangements (except for customer contracts containing rebating of charges arrangements in the ordinary course of business consistent with past practice), including contracts containing any Most Favored Customer Provision;
(kx) contracts or other agreements under which the Company agrees to indemnify any agreement party for material Tax liabilities of such party or to share a material Tax liability of any party;
(xi) contracts and other agreements containing any covenant limiting the freedom of the Company or any of its present or future Affiliates to (A) engage in any line of business or in any geographic territory or to compete with any holder of securities of Seller as such (includingPerson, without limitationor which grants to any Person any exclusivity with respect to any geographic territory, any agreement containing an obligation to register customer, or any of such securities under any federal product or state securities lawsservice, or (B) acquire property (tangible or intangible);
(lxii) any agreement obligating Seller to deliver services or product enhancements or containing a "most favored nation" pricing clause;
(m) any agreement contracts and other agreements relating to the acquisition or disposition by Seller the Company of any operating business or the capital stock or other securities of any other personPerson;
(nxiii) any agreement contracts and other agreements requiring the payment to any person of a brokerage commission, success fee or sales commission or a finder's or referral fee (royalty, other than arrangements to pay commission or fees to employees Employees in the ordinary course of business);
(oxiv) contracts and other agreements outside the ordinary course of business consistent with past practice pursuant to which the Company may collect any agreement or note relating to or evidencing outstanding indebtedness for borrowed moneyPersonal Information from any third parties;
(pxv) any leasemortgages, sublease indentures, loan or credit agreements, factoring agreements, promissory notes and other agreements and instruments relating to the borrowing of money or financing or sale of receivables;
(xvi) research, development (whether contracted or shared), and manufacturing agreements;
(xvii) reseller or distributorship agreements, original equipment manufacturer (OEM) agreements, or systems integrator agreements;
(xviii) leases, financing agreements, subleases or other agreement agreements under which Seller the Company is lessor or lessee of any real property or equipment or other tangible property with respect to obligations in excess of $25,000personal property;
(qxix) Except for licenses, sublicenses and other agreements required to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as be listed in Schedule 2.16(c) of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resourcesCompany Disclosure Schedule; and
(rxx) any other material agreement whether or not contracts with Governmental Entities.
(b) Schedule 2.13 of the Company Disclosure Schedule contains a true, correct and complete list of all Material Contracts numbered as appropriate under subsection (a) hereof. The Company has made in available to the ordinary course of business. True Buyer true and complete copies of all the contracts and other agreements (Material Contracts and all amendments, waivers amendments or other modifications thereto) set forth on thereto or, in the Seller Disclosure Schedule have been furnished to BEAcase of oral Material Contracts, complete and accurate descriptions in all material respects. Each of such contracts is All the Material Contracts are valid, subsisting, in full force and effect, binding upon Seller, and to the best knowledge of Seller, binding upon the Company and, to the Knowledge of the Company, on the other parties thereto in accordance with their termsparty (ies) thereto. As of the Agreement Date, and Seller no written notice of termination or amendment of any Material Contract has been given to the Company by any other party thereto. Neither the Company nor, to the Knowledge of the Company, any other party thereto, is not in default under any of themMaterial Contract, norand, to the best knowledge Knowledge of Sellerthe Company, is any other party to any such contract or other agreement in default thereunder, no event has occurred nor does any condition exist that with notice or lapse of time or both, both would constitute a default by the Company or any such other party thereunder. The Company is in compliance with all material (i) delivery requirements, except(ii) time lines, (iii) schedules, and (iv) time of performance requirements and other material milestones under all Material Contracts. The Company has not incurred any significant cost over-runs on any Material Contract, and the Company has no reasonable basis to believe that it will incur any such significant cost over-runs.
(c) There is no Contract or Order to which the Company is a party, subject or otherwise bound, that would reasonably be expected to prohibit, impair or otherwise limit: (a) any current business practice of the Company or any of its present Affiliates; (b) any acquisition of property (tangible or intangible) by the Company or any of its present Affiliates; (c) the conduct of the Business by the Company; or (d) except as set forth on Schedule 2.13(c) of the Company Disclosure Schedule, the freedom of the Company or any of its present Affiliates to engage in any line of business or to compete or do business with any Person, in each casecase whether arising as a result of a change in control of the Company or any of its present Affiliates or otherwise. Without limiting the generality of the foregoing and except as set forth in Schedule 2.13(c) of the Company Disclosure Schedule, such defaults as would notthe Company has not (x) entered into any Contract under which the Company or any of its present Affiliates is restricted from selling, individually licensing, manufacturing or otherwise distributing any of its technology or products or from providing services to customers or potential customers or any class of customers, in any geographic area, during any period of time, or in any segment of the aggregatemarket, have a material adverse effect on (y) granted any Person exclusive rights to sell, license, manufacture or otherwise distribute any of the SellerCompany’s or any of its present Affiliates’ technology or products in any geographic area or with respect to any customers or potential customers or any class of customers during any period of time or in any segment of the market, or (z) entered into any Contract that will bind the Buyer or any of its Affiliates with respect to the Buyer’s or the Buyer’s Affiliates’ own customers, products or services.
Appears in 1 contract
Contracts and Other Agreements. Section 3.8 of the Seller Disclosure Schedule sets forth a list of the following contracts (a) Contracts and other agreements described in this subsection, whether written or oral, to which Seller Arbortext or any of its Subsidiaries is a party or by or to which Seller it or Seller's any of its assets or properties are bound or subjectsubject are referred to herein collectively as "Material Contracts":
(ai) any agreement or series of related contracts and other agreements requiring aggregate payments after the date hereof by or to Seller of more than $25,000;
(b) any agreement with or for the benefit of any current or former officer, director, stockholderstockholder or employee of Arbortext or any Subsidiary or with any entity in which any of the foregoing is an officer, employee director or consultant 5% or greater shareholder and pursuant to which Arbortext or any Subsidiary or such other party has current or future obligations or liabilities in excess of Seller$100,000 in any fiscal year;
(cii) any agreement contracts and other agreements with any labor union or association representing any employee of SellerArbortext or any Subsidiary;
(diii) any agreement contracts and other agreements for the purchase purchase, sale or sale license of software, materials, supplies, equipment, merchandise or services that contains services, or relating to capital expenditures, for an amount in excess of $100,000 (taking into account any escalation, renegotiation or redetermination clause redetermination);
(iv) contracts and other agreements for the sale or that obligates Seller exclusive license of any of the assets or properties of Arbortext or any Subsidiary or for the grant to any person of any option, right of first refusal, or preferential or similar right to purchase any of such assets or properties;
(v) partnership, collaboration, mutual assistance, joint development, joint marketing and joint venture agreements;
(vi) contracts or other agreements under which Arbortext or any Subsidiary agrees to indemnify any party for Tax liabilities or to share the Tax liability of any party;
(vii) contracts and other agreements that obligate Arbortext or any Subsidiary to purchase or license all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases or licenses of a particular product from a supplier;
(eviii) any agreement for (i) sale of any of the assets contracts and other agreements with customers, suppliers, partners or properties of Seller, other than in the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8;
(f) any partnership or joint venture agreement;
(g) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000;
(h) any agreement containing covenants of Seller not to compete in any line of business, in any geographic area or with any person or covenants of any other person not to compete with Seller or in any line of business of Seller; (i) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter);
(j) any agreement with customers or suppliers collaborators for the sharing of fees, the rebating of charges or other similar arrangements, including contracts containing any Most Favored Customer Provision;
(kix) contracts and other agreements containing covenants of Arbortext or any agreement Subsidiary not to compete in any line of business or geographical area, or with any holder person, or covenants of securities of Seller as such (including, without limitation, any agreement containing an obligation current or former employee or other person not to register compete with Arbortext or any of such securities under any federal or state securities laws)Subsidiary;
(lx) any agreement obligating Seller to deliver services or product enhancements or containing a "most favored nation" pricing clause;
(m) any agreement contracts and other agreements relating to the acquisition by Seller Arbortext or any Subsidiary of any operating business or the capital stock or other securities of any other person;
(nxi) any agreement contracts and other agreements requiring the payment to any person of a brokerage commission, fee or sales commission or a finder's or referral fee (royalty, other than arrangements to pay commission or fees to employees in the ordinary course of business);
(oxii) any agreement mortgages, indentures, loan or note credit agreements, factoring agreements, promissory notes and other agreements and instruments relating to the borrowing of money or evidencing outstanding indebtedness for borrowed moneyfinancing or sale of receivables;
(pxiii) any leaseresearch, sublease development (whether contracted or shared), distributorship, manufacturing and reseller agreements;
(xiv) leases, financing agreements, subleases or other agreement agreements under which Seller Arbortext or any Subsidiary is lessor or lessee of any real property or equipment or other tangible property with respect to obligations in excess of $25,000personal property;
(qxv) Except for licenses, sublicenses and other agreements required to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as be listed in Section 2.16(b) of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resourcesArbortext Disclosure Schedule; and
(rxvi) any other material agreement contract or agreement, whether or not made in the ordinary course of business.
(b) All Material Contracts are listed in Section 2.13 of the Arbortext Disclosure Schedule (which may be by cross-reference to Section 2.16(b) or 2.19(a)). True Arbortext has delivered or made available to PTC true and complete copies of all the contracts and other agreements (Material Contracts and all amendments, waivers or other modifications thereto) set forth on thereto or, in the Seller Disclosure Schedule have been furnished to BEAcase of oral Material Contracts, complete and accurate descriptions. Each All of such contracts is the Material Contracts are valid, subsisting, in full force and effect, and binding upon SellerArbortext or the respective Subsidiary and, to Arbortext's Knowledge, on the other party(ies) thereto. No written (or, to Arbortext's Knowledge, oral) notice of termination or amendment of any Material Contract has been given to Arbortext or any Subsidiary by any other party thereto. Arbortext or the respective Subsidiary and each other party thereto has paid in full or, to Arbortext's Knowledge, accrued all amounts now due from it under each Material Contract and has satisfied in full or provided for all of its liabilities and obligations thereunder that are presently required to be satisfied or provided for, and to the best knowledge of Seller, binding upon the other parties thereto in accordance with their terms, and Seller is not in default under any of them, nor, to the best knowledge of Seller, is nor has any other party to any such contract event occurred or other agreement in default thereunder, nor does any condition exist that with notice or lapse of time or both, both would constitute a default by Arbortext or any Subsidiary or, to Arbortext's Knowledge, any such other party thereunder, except, in each case, such defaults as would not, individually or in the aggregate, have a material adverse effect on the Seller.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Parametric Technology Corp)
Contracts and Other Agreements. Section 3.8 of the Seller (a) The Disclosure Schedule sets forth a true and complete list of all of the following contracts and other agreements to which Seller the Company or any Subsidiary is a party or by which it or to which Seller or Seller's assets or properties are any Subsidiary is bound or subject:(collectively, the "Contracts"):
(ai) any agreement lease of personal property which involves annual expenditures or series receipts in excess of related agreements requiring aggregate payments after the date hereof by or to Seller of more than One Hundred Thousand Dollars ($25,000100,000.00);
(bii) any agreement each lease with or for respect to the benefit of any current or former officer, director, stockholder, employee or consultant of SellerLeased Real Property;
(ciii) any license agreement with or other agreements of the Company or any labor union Subsidiary providing in whole or association representing in part for the use of any employee of Sellerpatents, trademarks, trade names, service marks, copyrights, inventions, trade secrets or other proprietary know-how or other intellectual property, whether the Company is the licensor or the licensee thereunder, and all settlements, consents or forbearance to xxx agreements relating thereto;
(div) any agreement for the purchase contract, arrangement or sale of materials, supplies, equipment, merchandise or services that contains an escalation, renegotiation or redetermination clause or that obligates Seller to purchase all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases of a particular product from a supplier;
(e) any agreement for (i) sale of any of the assets or properties of Seller, other than understanding not made in the ordinary course of business or (ii) for and consistent with past practice which is material to the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 business of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8Company;
(fv) any partnership note, bond, indenture, credit facility, mortgage, security agreement or joint venture agreement;
(g) any agreement of suretyother instrument or document relating to or evidencing indebtedness for money borrowed, guarantee or indemnification, other than agreements a security interest or mortgage in the ordinary course assets of business with respect to obligations in an aggregate amount not the Company or any Subsidiary in excess of One Million Dollars ($25,000;
(h) any agreement containing covenants of Seller not to compete in any line of business, in any geographic area or with any person or covenants of any other person not to compete with Seller or in any line of business of Seller; (i) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter1,000,000.00);
(jvi) any agreement with customers indemnity or suppliers for guaranty issued by the sharing of fees, Company or any Subsidiary during the rebating of charges or other similar arrangements;
past three (k3) any agreement with any holder of securities of Seller as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(l) any agreement obligating Seller to deliver services or product enhancements or containing a "most favored nation" pricing clause;
(m) any agreement relating to the acquisition by Seller of any operating business or the capital stock of any other person;
(n) any agreement requiring the payment to any person of a brokerage or sales commission or a finder's or referral fee years (other than arrangements to pay commission customary product warranties provided by the Company or fees to employees any Sub- sidiary in the ordinary course of business);
(ovii) any agreement contract, arrangement or note relating understanding materially restricting the right of the Company or any Subsidiary to engage in any business activity or evidencing outstanding indebtedness for borrowed moneycompete with any business;
(pviii) any leasecontract, sublease arrangement or other agreement under understanding by the Company or any Subsidiary to customers or distributors which Seller is lessor or lessee of any real property or equipment or other tangible property with respect to obligations aggregate in excess of Four Hundred Thousand Dollars ($25,000400,000.00) to any one customer or distributor;
(qix) Except any power of attorney given by the Company or any Subsidiary, which is currently in effect, to any person, firm or corporation for any purpose whatsoever;
(x) any collective bargaining agreements to provide maintenancewith any unions, upgradesguilds, bug fixesshop committees or collective bargaining groups; or
(xi) any contracts or agreements with current officers, error corrections other employees, consultants or similar work product that advisors other than contracts which by their terms are ordinary and customary for cancelable by the software industry and that are related Company with notice or not more than sixty (60) days.
(b) The Company has previously provided to the Seller products which have been delivered as Buyer complete and correct copies of the date hereof, each written Contract (and any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources; andamendments thereto).
(ri) any other material agreement whether or not made in the ordinary course of business. True and complete copies of all the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on the Seller Disclosure Schedule have been furnished to BEA. Each of such contracts Contract is valid, subsisting, in full force and effect, binding upon Seller, and to effect against the best knowledge of Seller, binding upon Company; (ii) neither the other parties thereto in accordance with their terms, and Seller Company nor any Subsidiary is not in default under any of themContract, norand no event has occurred which constitutes, to or with the best knowledge of Seller, is any other party to any such contract or other agreement in default thereunder, nor does any condition exist that with notice or lapse of time or boththe giving of notice or both would constitute, would constitute a material default thereunderby the Company or any Subsidiary under any such Contract; and (iii) to the knowledge of the Company, exceptthere are no material disputes or disagreements between the Company or its Subsidi- aries and any other party with respect to any such Contract. Copies of the standard terms and conditions of sale, in each case, such defaults as would not, individually delivery or lease of the Company are included in the aggregate, have a material adverse effect on the SellerDisclosure Schedule.
Appears in 1 contract
Contracts and Other Agreements. Section 3.8 To the knowledge of VGPO, the Seller VGPO Disclosure Schedule sets forth a correct and complete list of all of the following currently in effect:
(i) written contracts and other agreements to which Seller is a party or by or to which Seller or Seller's assets or properties are bound or subject:
(a) any agreement or series of related agreements requiring aggregate payments after the date hereof by or to Seller of more than $25,000;
(b) any agreement with or for the benefit of any current or former officer, director, stockholder, stockholder or employee or consultant of Seller;VGPO involving more than $25,000,
(cii) any agreement contracts and other agreements with any labor union or association representing any employee of SellerVGPO or otherwise providing for any form of collective bargaining;
(diii) any agreement contracts and other agreements for the purchase or sale of materials, supplies, equipment, merchandise or services that contains contain an escalation, renegotiation or redetermination clause or that obligates Seller obligate VGPO to purchase all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases of a particular product from a supplier;
(eiv) any agreement contracts and other agreements for (i) the sale of any of the assets or properties of Seller, VGPO other than in the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any of such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8properties;
(fv) any partnership or joint venture agreementagreements to which VGPO is a party;
(gvi) any agreement contracts with agents or foreign representatives regarding the sales or marketing of surety, guarantee the services or indemnification, other than agreements in the ordinary course products of business with respect to obligations in an aggregate amount not in excess of $25,000VGPO;
(hvii) contracts or other agreements under which VGPO agrees to act as surety or guarantor for or to indemnify any agreement containing covenants of Seller not party (other than required indemnification provisions in customer contracts) or to compete in any line of business, in any geographic area or with any person or covenants share the tax liability of any other person not to compete with Seller or in any line of business of Seller; (i) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter)party;
(jviii) contracts, options, outstanding purchase orders and other agreements for the purchase of any agreement material asset, tangible or intangible;
(ix) contracts and other agreements with customers customers, suppliers or suppliers other parties for the sharing of fees, the rebating of charges or other similar arrangementsarrangements other than such contracts entered into in the ordinary course of business;
(kx) contracts and other agreements containing obligations or liabilities of any agreement with any holder kind to holders of the securities of Seller VGPO as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(lxi) contracts and other agreements containing covenants of VGPO not to compete in any agreement obligating Seller line of business or with any person or entity or covenants of any other person or entity not to deliver services or product enhancements or containing a "most favored nation" pricing clausecompete with VGPO in any line of business;
(mxii) any agreement contracts and other agreements relating to the acquisition by Seller VGPO of any operating business or the capital stock of any other personperson or entity;
(nxiii) any agreement contracts and other agreements requiring the payment to any person party of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission or fees to employees in the ordinary course of business)fee;
(oxiv) contracts, indentures, mortgages, promissory notes, debentures, loan agreements, guaranties, security agreements, pledge agreements, and other agreements and instruments relating to the borrowing or lending of money by VGPO or securing any such liability by VGPO;
(xv) any agreement or note relating series of related agreements requiring aggregate payments by or to or evidencing outstanding indebtedness for borrowed moneyVGPO of more than $50,000;
(pxvi) any lease, sublease or other agreement contracts under which Seller is lessor VGPO will acquire or lessee of any real property or equipment or other tangible property with respect to obligations in excess of $25,000;
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as of the date hereof, any agreement that requires Seller to deliverhas acquired ownership of, or undertake the development oflicense to, any new productintangible property, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resourcesincluding software other than commercially available end-user licenses; and
(rxvii) any other material contract or other agreement to which VGPO is a party or by which any of its assets are bound whether or not made in the ordinary course of business. True VGPO has delivered or made available to EPIC true and complete copies of all of the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on in the Seller VGPO Disclosure Schedule have been furnished to BEASchedule. Each All of such contracts is and other agreements are valid, subsisting, in full force and effect, binding upon Seller, VGPO and to the best knowledge of SellerVGPO, binding upon the other parties thereto in accordance with their terms. Other than defaults which would not, and Seller either singly or in the aggregate, have an VGPO Material Adverse Effect, VGPO is not in default under any of themsuch contracts and other agreements, nor, to the best knowledge of SellerVGPO, is any other party to any such contract or other agreement in default thereunder, nor does any condition exist that constitutes or with notice or lapse of time or both, both would constitute a default by VGPO thereunder, except, in each case, such defaults as would not, individually or in the aggregate, have a material adverse effect on the Seller.
Appears in 1 contract
Samples: Merger Agreement (V Gpo Inc)
Contracts and Other Agreements. Section 3.8 of the Seller Disclosure Schedule 4.13 sets forth a list all of the following contracts and other agreements (other than the Leases) to which Seller the Company is a party or by which the Company or to which Seller or Seller's its assets or properties are bound or subject:
(a) any agreement or series of related agreements requiring aggregate payments after the date hereof by or to Seller of subject and which involve more than $25,000;
10,000.00: (bi) any agreement with or for the benefit of any current or former officer, director, stockholder, employee or consultant of Seller;
(c) any agreement contracts and other agreements with any labor union or association representing any employee of Seller;
employees; (dii) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation, renegotiation or redetermination clause or that obligates Seller to purchase all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases of a particular product from a supplier;
(e) any agreement for (i) sale of any of the assets or properties of Seller, other than contracts not entered into in the ordinary course of business business; (iii) contracts and other agreements for the sale of any of assets or the Company's properties (iiother than contracts and other agreements for the sale of inventory in the ordinary course of business) or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection properties; (biv) of this Section 3.8;
(f) any partnership or joint venture agreement;
and partnership agreements; (gv) contracts or other agreements under which the Company has agreed to indemnify any agreement party or to share any liability of suretyany party including, guarantee or indemnificationwithout limitation, liability with respect to taxes, other than contracts and other agreements regarding the sale of goods in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000;
(h) any agreement containing covenants of Seller not to compete in any line of business, in any geographic area or with any person or covenants of any other person not to compete with Seller or in any line of business of Seller; (ivi) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter);
(j) any agreement contracts and other agreements with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
; (kvii) contracts and other agreements containing covenants of the Company not to compete in any agreement line of business or with any holder of securities of Seller as such person in any geographical area; (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(lviii) any agreement obligating Seller to deliver services or product enhancements or containing a "most favored nation" pricing clause;
(m) any agreement contracts and other agreements relating to the acquisition by Seller the Company of any operating business or the capital stock of any other person;
; (nix) options for the sale or purchase of any agreement stock, note or other security; (x) contracts and other agreements requiring the payment to any person of a brokerage royalty, override or sales commission or a finder's or referral fee similar commission; (xi) contracts and other than arrangements to pay commission or fees to employees in the ordinary course of business);
(o) any agreement or note agreements relating to the borrowing of money or evidencing outstanding indebtedness the incurrence of indebtedness; (xii) guarantees, performance or completion bonds and surety agreements; (xiii) contracts of agency, representation, distribution or franchise; (xiv) contracts for borrowed money;
(p) the employment for any leaseperiod of time whatsoever, sublease or other agreement under which Seller is lessor or lessee restricting the employment, of any real property or equipment or salaried employee; and (xv) contracts and other tangible property agreements with respect to obligations in excess of $25,000;
a term longer than one (q1) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which year. There have been delivered as of to the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources; and
(r) any other material agreement whether or not made in the ordinary course of business. True and complete Purchaser copies of all of the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on Schedule 4.13 or, if unwritten, accurate summaries of all of the Seller Disclosure Schedule have been furnished to BEA. Each material terms thereof, and there are no other material terms of such contracts is or other agreements except as set forth on such copies and/or summaries. Except as disclosed on Schedule 4.13 all of such contracts and other agreements are valid, subsisting, in full force and effect, binding upon Seller, effect and to the best knowledge of Seller, binding upon the other parties thereto Company in accordance with their terms, ; and Seller the Company is not in material default under any of them. Except as separately identified on Schedule 4.13, nor, to no approval or consent of any person is needed in order that the best knowledge contracts and other agreements set forth on Schedule 4.13 continue in full force and effect following the consummation of Seller, is any other party to any such contract or other agreement in default thereunder, nor does any condition exist that with notice or lapse of time or both, would constitute a default thereunder, except, in each case, such defaults as would not, individually or in the aggregate, have a material adverse effect on the Sellertransactions contemplated by this Agreement.
Appears in 1 contract
Samples: Stock Purchase and Redemption Agreement (Owosso Corp)
Contracts and Other Agreements. Section 3.8 Schedule 2.16 of the Seller Disclosure ------------------------------ Schedule sets forth contains a complete and accurate list of all of the following contracts and other agreements to which Seller the Company is a party or by or to which Seller it or Seller's its assets or properties are bound or subjectsubject or which are necessary for the Company to conduct its business as presently conducted:
(ai) any agreement or series of related contracts and other agreements requiring aggregate payments after the date hereof by or to Seller of more than $25,000;
(b) any agreement with or for the benefit of any current or former officer, director, stockholderemployee, employee consultant, agent or consultant other representative or with any person or entity in which any of Sellerthe foregoing has an interest, including any "Affiliate" or "Associate" of such person or entity, as such terms are defined in the Securities Act of 1933 and the rules and regulations published thereunder;
(cii) any agreement contracts and other agreements with any labor union or association representing any employee of Selleremployee;
(diii) any agreement contracts and other agreements for the purchase or sale supply to any person of materials, supplies, equipment, merchandise or services that contains an escalation, renegotiation or redetermination clause or that obligates Seller to purchase all or substantially all a portion of its such person's requirements of a particular any product from a supplier, or for periodic minimum purchases of a particular product from a supplierservice sold by the Company;
(eiv) any agreement contracts and other agreements for (i) the sale of any of the its assets or properties of Seller, other than in the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such of its assets or properties;
(v) joint venture and partnership agreements;
(vi) contracts or other agreements under which the Company agrees to indemnify any party or to share tax liability of any party;
(vii) contracts or other agreements of guaranty or relating to matters of suretyship to which the Company is a party or by which its assets or properties other than stock option and warrant agreements are subject or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8;bound,
(fviii) contracts and other agreements calling for an aggregate price or fee, or payments in any partnership one year, of more than $10,000 excluding purchase or joint venture agreement;
(g) any agreement of surety, guarantee sales orders entered into by the Company as a purchaser or indemnification, other than agreements a seller in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000business;
(hix) any agreement containing covenants of Seller contracts and other agreements that cannot to compete in any line of businessbe cancelled without liability, in any geographic area premium or with any person or covenants of any other person not to compete with Seller or in any line of business of Seller; penalty upon thirty (i30) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter)days' notice;
(jx) any agreement contracts and other agreements with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(kxi) contracts and other agreements containing obligations or liabilities of any agreement with any holder kind to holders of the Company's securities of Seller as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(lxii) contracts and other agreements containing covenants of the Company not to compete in any agreement obligating Seller line of business or with any person in any geographical area or covenants of any other person or entity not to deliver services compete with the Company in any line of business or product enhancements or containing a "most favored nation" pricing clausein any geographical area;
(mxiii) any agreement contracts and other agreements relating to the acquisition by Seller the Company of any operating business or the capital stock of any other person, corporation or other entity;
(nxiv) contracts or agreements relating to or affecting any agreement trade name, trademark, service xxxx, patent rights, copyright, know-how, software or other intellectual property owned, licensed or used by the Company in the course of its business, including without limitation all contracts and agreements relating to the development and use of software;
(xv) contracts and other agreements requiring the payment to any person of a brokerage royalty, override or sales similar commission or fee;
(xvi) contracts and other agreements relating to the borrowing of money by the Company or subjecting any assets or properties of the Company to security interests, liens or other liabilities or obligations;
(xvii) any agreement, contract or commitment which might reasonably be expected to have a finder's potential adverse impact on the business or referral fee operations of the Company;
(xviii) any contract or other than arrangements to pay commission or fees to employees agreement not made in the ordinary course of business);; or
(o) any agreement or note relating to or evidencing outstanding indebtedness for borrowed money;
(p) any lease, sublease or other agreement under which Seller is lessor or lessee of any real property or equipment or other tangible property with respect to obligations in excess of $25,000;
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources; and
(rxix) any other material contract or other agreement whether or not made in the ordinary course of business. True There have been delivered or made available to the Buyer true and complete copies of all of the written contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth described on the Seller Disclosure Schedule have been furnished to BEA2.16. Each All of such contracts is valid, subsisting, in full force and effect, binding upon Seller, other agreements are valid and to the best knowledge of Seller, binding upon the other parties thereto Company in accordance with their terms, and Seller is not the Company has performed in default under any of them, nor, to the best knowledge of Seller, is any other party to any such contract or other agreement in default thereunder, nor does any condition exist that with notice or lapse of time or both, would constitute a default thereunder, except, in each case, such defaults as would not, individually or in the aggregate, have a material adverse effect on the Seller.all respects all contractual obligations
Appears in 1 contract
Samples: Stock Purchase Agreement (Fisher Business Systems Inc)
Contracts and Other Agreements. Section 3.8 3.14 of the Seller Disclosure Schedule sets forth a list of the following contracts and other agreements to which Seller the Company or any of its Subsidiaries is a party or by or to which Seller any of their respective assets, properties or Seller's assets or properties securities are bound or subjectsubject and under which the Company or any of its Subsidiaries has any obligations as of the date hereof:
(a) any agreement or series of related agreements requiring aggregate payments after the date hereof by or to Seller the Company or any of its Subsidiaries of more than $25,00050,000;
(b) any agreement with or for the benefit of any current or former officer, directordirector or holder of any security, stockholderof the Company or any of its Subsidiaries, other than non-disclosure or similar agreements in favor of the Company or its Subsidiaries, under which the Company or any of its Subsidiaries has any obligations as of the date hereof;
(c) any agreement with or for the benefit of any current or former employee or consultant of Sellerthe Company or any of its Subsidiaries under which the Company or any of its Subsidiaries has any obligations as of the date hereof which (i) involves an obligation of the Company or any of its Subsidiaries to make future payments exceeding $75,000 per year or (ii) involves any future severance or termination payments other than accrued salary, sick, or vacation pay pursuant to the policies now in effect of the Company or any of its Subsidiaries, as the case may be;
(cd) any agreement with any labor union or association representing any employee of Sellerthe Company or any of its Subsidiaries;
(de) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation, renegotiation or redetermination escalation clause or that obligates Seller the Company or any of its Subsidiaries to purchase all or substantially all of its requirements of a particular product or service from a supplier, supplier or for to make periodic minimum purchases of a particular product or service from a supplier, which is not terminable on 30 days notice or less (without penalty or premium) and which involves future payments by the Company or any of its Subsidiaries of more than $75,000 in the aggregate;
(ef) any agreement for (i) the sale of any significant portion of the assets or properties of Sellerthe Company or any of its Subsidiaries, other than in the ordinary course of business business, or (ii) for the grant to any person Person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8;
(f) any partnership or joint venture agreementproperties;
(g) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000;
(h) any agreement containing to which the Company or any of its Subsidiaries is a party and which contains covenants of Seller the Company or any of its Subsidiaries not to compete in any line of business, in any geographic area or with any person Person or covenants of any other person Person not to compete with Seller the Company or any of its Subsidiaries or in any line of business of Seller; (i) the Company or any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter)its Subsidiaries;
(ji) any agreement with customers or suppliers for the sharing of fees, royalties or other income, the rebating of charges or other similar arrangements;
(k) any agreement with any holder of securities of Seller as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(lj) any agreement obligating Seller the Company or any of its Subsidiaries to deliver future maintenance services or future product enhancements or containing a "most favored nation" or other similar pricing adjustment clause;
(mk) any agreement relating to the acquisition by Seller the Company of any operating business or the capital stock of any other personPerson;
(nl) any agreement requiring the payment to any person Person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission commissions or fees to employees in the ordinary course of business);
(om) any agreement or note relating to or evidencing outstanding indebtedness of the Company for borrowed money;
(pn) any lease, sublease or other agreement under which Seller the Company or any of its Subsidiaries is lessor or lessee of any real property or equipment or other tangible property with respect to obligations which involves future payments by the Company in excess of $25,00075,000 or which is not terminable on 30 days' notice;
(o) any agreement with a change of control provision or otherwise requiring consent with respect to the transactions contemplated by this Agreement;
(p) any distribution or sales representative agreement or agreement appointing any agent;
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources; and
(r) any other material agreement whether or not made in the ordinary course of business;
(r) any agreement under which the Company or any of its Subsidiaries entered into an exclusive arrangement of any nature with any Person; and
(s) any agreement under which the Company has been prepaid for goods or services not yet delivered by Company having a value in excess of $100,000. True and complete copies of all the contracts and other agreements (and all written amendments, waivers or other modifications thereto and written summaries of all oral amendments, waivers of other modifications thereto) set forth on Section 3.14 of the Seller Disclosure Schedule have been furnished to BEAthe Buyer or its counsel. Each of such contracts and other agreements is valid, subsisting, in full force and effect, binding upon Sellerthe Company or any of its Subsidiaries, and as applicable, and, to the best knowledge of SellerCompany's knowledge, binding upon the other parties thereto in accordance with their terms, and Seller neither the Company nor any of its Subsidiaries, as applicable, is not in breach of or default under any of them, nor, to the best knowledge of SellerCompany's knowledge, is any other party to any such contract or other agreement in default thereunder, nor does any condition exist that with notice breach of or lapse of time or both, would constitute a default thereunder, except, in each case, such breaches or defaults of the Company or any of its Subsidiaries, as applicable, as would not, individually or in the aggregate, not reasonably be expected to have a material adverse effect on the SellerCompany Material Adverse Effect.
Appears in 1 contract
Contracts and Other Agreements. (a) Section 3.8 3.20(a) of the Seller Advisor Disclosure Schedule sets (with paragraph references corresponding to those set forth below) contains a correct and complete list of all of the following contracts and or other agreements arrangements to which Seller the Advisor is a party or by or to which Seller or Seller's any of its assets or properties are bound or subjectis bound, in each case as of the date hereof:
(ai) all contracts or other arrangements providing compensation for employment or consulting services, together with the name, position and rate of compensation of each Person party to such a contract or other arrangement and the expiration date of such contract or other arrangement;
(ii) all contracts or other arrangements with any agreement Person containing any provision or series covenant prohibiting or materially limiting the ability of the Advisor or any of its employees or other Persons who primarily provide services for it or, following the Closing, any of its Affiliates to engage in any business activity or compete with any Person;
(iii) all material partnership, joint venture, shareholders’ or other similar contracts or arrangements with any Person;
(iv) all contracts or other arrangements related agreements requiring aggregate to Indebtedness of the Advisor in excess of $25,000;
(v) all contracts or other arrangements involving payments after the date hereof by or to Seller the Advisor of more than $25,000;
(bvi) any agreement with all contracts or for the benefit of any current or former officer, director, stockholder, employee or consultant of Seller;
(c) any agreement with any labor union or association representing any employee of Seller;
(d) any agreement other arrangements for the purchase or sale of materials, supplies, equipment, merchandise software or services that contains an escalation, renegotiation or redetermination clause or that obligates Seller to purchase all or substantially all of its requirements of a particular product from a supplier, or technology providing for periodic minimum purchases of a particular product from a supplier;
(e) any agreement for (i) sale of any of the assets or properties of Seller, other than in the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8;
(f) any partnership or joint venture agreement;
(g) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not payments in excess of $25,000;
(hvii) any agreement containing covenants of Seller not to compete in any line of business, in any geographic area or with any person or covenants of any other person not to compete with Seller or in any line of business of Seller; (i) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter);
(j) any agreement with customers or suppliers for the sharing of fees, the rebating of charges all contracts or other similar arrangements;
(k) any agreement with any holder of securities of Seller as such (including, without limitation, any agreement containing an obligation arrangements pursuant to register any of such securities under any federal or state securities laws);
(l) any agreement obligating Seller to deliver services or product enhancements or containing which the Advisor is a "most favored nation" pricing clause;
(m) any agreement relating to the acquisition by Seller of any operating business or the capital stock of any other person;
(n) any agreement requiring the payment to any person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission or fees to employees in the ordinary course of business);
(o) any agreement or note relating to or evidencing outstanding indebtedness for borrowed money;
(p) any lease, sublease or other agreement under which Seller is lessor or lessee of any real property or equipment machinery, equipment, motor vehicle, office furniture, fixtures or other tangible personal property with respect to obligations providing for lease payments in excess of $25,000;
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources25,000 per year; and
(rviii) any other material agreement whether or not made in the ordinary course of business. True and complete copies of all the contracts and other agreements (and all amendments, waivers or other modifications theretoarrangements that are material to the Advisor and are not otherwise required to be included in Section 3.20(a) of the Advisor Disclosure Schedule by clauses (i) through (vii).
(b) The Advisory Agreement and each other contract set forth on Section 3.20(a) of the Seller Advisor Disclosure Schedule have been furnished to BEA. Each of such contracts is valid, subsisting, in full force and effecteffect against the Advisor and constitutes a legal, valid and binding upon Selleragreement of the Advisor, and enforceable against the Advisor, and, to the best knowledge Knowledge of Sellerthe Advisor Parent, binding upon the each other parties thereto party thereto, in accordance with their its terms, and Seller is not in default under any of them, nor, to the best knowledge of Seller, is any other party to any such contract or other agreement in default thereunder, nor does any condition exist that with notice or lapse of time or both, would constitute a default thereunder, except, in each case, such defaults except as would notenforceability may be subject to (i) bankruptcy, individually insolvency, reorganization, moratorium or in the aggregate, have a material adverse effect on the Seller.other similar
Appears in 1 contract
Samples: Contribution Agreement (Dividend Capital Trust Inc)
Contracts and Other Agreements. Section 3.8 (a) The Company is not a party to or bound by, nor is any of its properties or assets bound or subject to, any other material contract or other agreement. All such contracts and other agreements and each of the Seller Disclosure contracts set forth in Schedule 3.23 are valid, existing, in full force and effect, binding upon the Company or its subsidiaries, as the case may be, and to the best knowledge of the Company and the Shareholder, binding upon the other parties thereto in accordance with their terms.
(b) Schedule 3.23 sets forth a list of the following contracts and other agreements to which Seller the Company is a party or by or to which Seller or Seller's its assets or properties are bound or subject:
(ai) any agreement or series of related agreements requiring that individually requires aggregate payments after expenditures by the date hereof by or to Seller Company in any one year of more than $25,00010,000;
(bii) any indenture, trust agreement, loan agreement with or note that involves or evidences outstanding indebtedness, obligations or liabilities for the benefit of any current or former officer, director, stockholder, employee or consultant of Sellerborrowed money;
(ciii) any agreement with lease, sublease, installment purchase or similar arrangement for the purchase, use or occupancy of real or personal property that individually requires aggregate expenditures by the Company, or any labor union or association representing of its subsidiaries in any employee one year of Sellermore than $5,000;
(d) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation, renegotiation or redetermination clause or that obligates Seller to purchase all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases of a particular product from a supplier;
(e) any agreement for (i) sale of any of the assets or properties of Seller, other than in the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8;
(f) any partnership or joint venture agreement;
(giv) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000;
(hv) any agreement, including without limitation employment agreements and bonus plans, relating to the compensation of, or obligating the Company to make payments to, (i) officers, (ii) employees, (iii) former employees, (iv) consultants, (v) advisors or (vi) directors;
(vi) any agreement containing covenants of Seller the Company not to compete in any line of business, in any geographic area or with any person or covenants of any other person not to compete with Seller the Company or in any line of business of Seller; (i) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter)Company;
(j) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(kvii) any agreement with any holder of securities of Seller as such (including, customer or supplier that cannot be terminated without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(l) any agreement obligating Seller to deliver services or product enhancements or containing a "most favored nation" pricing clause;
(m) any agreement relating to the acquisition by Seller of any operating business or the capital stock of any other person;
(n) any agreement requiring the payment to any person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission or fees to employees in the ordinary course of business);
(o) any agreement or note relating to or evidencing outstanding indebtedness for borrowed money;
(p) any lease, sublease or other agreement under which Seller is lessor or lessee of any real property or equipment or other tangible property with respect to obligations penalty in excess of $25,000;
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections 5,000 by the Company or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as any of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resourcesits subsidiaries within one year; and
(rviii) any other material agreement whether or not made in the ordinary course of businesssoftware license agreement. True and complete copies of all of the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on the Seller Disclosure in Schedule 3.23 (or required to be set forth therein) have been furnished previously provided to BEA. Each of such contracts is valid, subsisting, in full force and effect, binding upon Seller, and to the best knowledge of Seller, binding upon the other parties thereto in accordance with their terms, and Seller is not in default under any of them, nor, to the best knowledge of Seller, is any other party to any such contract ACS or other agreement in default thereunder, nor does any condition exist that with notice or lapse of time or both, would constitute a default thereunder, except, in each case, such defaults as would not, individually or in the aggregate, have a material adverse effect on the SellerU-Ship.
Appears in 1 contract
Samples: Merger Agreement (U Ship Inc)
Contracts and Other Agreements. Section 3.8 Neither the Company nor any of its subsidiaries is a party to or bound by, and neither they nor any of their properties or assets are bound or subject to, any contract or other agreement required to be disclosed in, or filed as exhibit to, the Seller Disclosure Schedule sets forth a list of Company SEC Reports which is not filed in the following Company SEC Reports. All such contracts and other agreements to which Seller is a party or by or to which Seller or Seller's assets or properties are bound or subject:
(a) any agreement or series of related agreements requiring aggregate payments after the date hereof by or to Seller of more than $25,000;
(b) any agreement with or for the benefit of any current or former officer, director, stockholder, employee or consultant of Seller;
(c) any agreement with any labor union or association representing any employee of Seller;
(d) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation, renegotiation or redetermination clause or that obligates Seller to purchase all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases of a particular product from a supplier;
(e) any agreement for (i) sale of any and each of the assets or properties of Seller, other than contracts set forth in the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 Schedule 3.19 of the Seller Company Disclosure Schedule or pursuant to subsection (b) of this Section 3.8;
(f) any partnership or joint venture agreement;
(g) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000;
(h) any agreement containing covenants of Seller not to compete in any line of business, in any geographic area or with any person or covenants of any other person not to compete with Seller or in any line of business of Seller; (i) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter);
(j) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(k) any agreement with any holder of securities of Seller as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(l) any agreement obligating Seller to deliver services or product enhancements or containing a "most favored nation" pricing clause;
(m) any agreement relating to the acquisition by Seller of any operating business or the capital stock of any other person;
(n) any agreement requiring the payment to any person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission or fees to employees in the ordinary course of business);
(o) any agreement or note relating to or evidencing outstanding indebtedness for borrowed money;
(p) any lease, sublease or other agreement under which Seller is lessor or lessee of any real property or equipment or other tangible property with respect to obligations in excess of $25,000;
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that Volume are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources; and
(r) any other material agreement whether or not made in the ordinary course of business. True and complete copies of all the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on the Seller Disclosure Schedule have been furnished to BEA. Each of such contracts is valid, subsistingexisting, in full force and effect, binding upon Sellerthe Company or its subsidiaries, as the case may be, and to the best knowledge of Sellerthe Company, binding upon the other parties thereto in accordance with their terms, and Seller is the Company and its subsidiaries have paid in full or accrued all amounts now due from them thereunder and have satisfied in full or provided for all of their liabilities and obligations thereunder which are presently required to be satisfied or provided for, and are not in default under any of them, nor, to the best knowledge of Sellerthe Company, is any other party to any such contract or other agreement in default thereunder, nor does any condition exist that with notice or lapse of time or both, both would constitute a default thereunder. Schedule 3.19 of the Company Disclosure Volume sets forth a list of the following contracts and other agreements to which the Company or any of its subsidiaries is a party or by or to which they or their assets or properties are bound or subject:
(a) any agreement that individually requires aggregate expenditures by the Company or any of its subsidiaries in any one year of more than $10,000;
(b) any indenture, excepttrust agreement, loan agreement or note that involves or evidences outstanding indebtedness, obligations or liabilities for borrowed money in excess of $10,000;
(c) any lease, sublease, installment purchase or similar arrangement for the purchase, use or occupancy of real or personal property (i) that individually requires aggregate expenditures by the Company or any of its subsidiaries in any one year of more than $10,000, or (ii) pursuant to which the Company or any of its subsidiaries is the lessor of any real property which has rentals over $5,000 per year, together with the date of termination of such leases, the name of the other party and the annual rental payments required to be made under such leases;
(d) any agreement of surety, guarantee or indemnification, other than (i) an agreement in the ordinary course of business with respect to obligations in an amount not in excess of $10,000, or (ii) indemnification provisions contained in leases not otherwise required to be disclosed;
(e) any agreement, including without limitation employment agreements and bonus plans, relating to the compensation of, or obligating the Company to make payments (whether such payments are fixed in amount or contingent upon revenues of, or opening of, a restaurant or other factors) to, (i) officers, (ii) employees, (iii) former employees, (iv) consultants, (v) advisors or (vi) any person who was promised such payments in consideration of helping the Company establish or promote restaurants;
(f) any agreement containing covenants of the Company not to compete in any line of business, in each case, such defaults as would not, individually any geographic area or with any person or covenants of any other person not to compete with the Company or in any line of business of the aggregateCompany;
(g) any agreement granting or restricting the right of the Company or any of its subsidiaries to use a trade name, trade xxxx, logo or the Company Proprietary Rights;
(h) any agreement with any customer or supplier that cannot be terminated without penalty in excess of $10,000 by the Company or any of its subsidiaries within one year; and
(i) any franchise, licensing or development agreement. True and complete copies of all of the contracts and other agreements set forth in Schedule 3.19 of the Company Disclosure Volume (or required to be set forth therein) have a material adverse effect on the Sellerbeen previously provided to Parent.
Appears in 1 contract
Contracts and Other Agreements. Section 3.8 3.11 of the Seller Disclosure Schedule sets forth a list all of the following contracts and other agreements to which Seller the Company or any Subsidiary is currently a party or by or to which Seller it or Seller's its assets or properties are bound or subjectsubject (and under which it has current or future rights or obligations) and which are material to the operation or value of the Company and the Subsidiaries taken as a whole, including without limitation:
(a) any agreement or series of related contracts and other agreements requiring aggregate payments after the date hereof by or to Seller of more than $25,000;
(b) any agreement with or for the benefit of any current or former officer, director, stockholder, employee employee, consultant, agent or consultant other representative of Sellerthe Company or any Subsidiary and contracts and other agreements for the payment of fees or other consideration to any entity in which any officer or director of the Company or any Subsidiary has an interest;
(cb) any agreement contracts and other agreements with any labor union or association representing any employee of Sellerthe Company or any Subsidiary or otherwise providing for any form of collective bargaining;
(dc) any agreement contracts and other agreements for the purchase or sale of materials, supplies, equipment, merchandise or services that contains contain an escalation, renegotiation or redetermination clause or that obligates Seller obligate the Company or any Subsidiary to purchase all or substantially all of its requirements of a particular product from a supplier, or for periodic minimum purchases of a particular product from a supplier;
(ed) any agreement contracts and other agreements for (i) the sale of any of the assets or properties of Seller, the Company or any Subsidiary other than in the ordinary course of business or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any of such assets or properties other than stock option and warrant agreements properties;
(e) partnership or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8joint venture agreements;
(f) contracts or other agreements under which the Company or any partnership Subsidiary agrees to indemnify any party or joint venture agreementto share the tax liability of any party;
(g) contracts, options and other agreements for the purchase of any agreement asset, tangible or intangible calling for an aggregate purchase price or payments in any one year of surety, guarantee more than $100,000 in any one case (or indemnification, other than agreements in the ordinary course aggregate, in the case of business with respect to obligations in an aggregate amount not in excess any related series of $25,000contracts and other agreements);
(h) contracts and other agreements that cannot by their terms be canceled by the Company or any agreement containing covenants Subsidiary and any successor or assignee of Seller not to compete in the Company or any line of businessSubsidiary without liability, in any geographic area premium or with any person or covenants of any other person not to compete with Seller or in any line of business of Seller; penalty on no less than thirty days notice;
(i) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter);
(j) any agreement contracts and other agreements with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(kj) contracts and other agreements containing obligations or liabilities of any agreement with any holder kind to holders of the securities of Seller the Company as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(lk) contracts and other agreements containing covenants of the Company or any agreement obligating Seller Subsidiary not to deliver services compete in any line of business or product enhancements with any person or containing a "most favored nation" pricing clausecovenants of any other person not to compete with the Company or any Subsidiary in any line of business;
(ml) any agreement contracts and other agreements relating to the acquisition by Seller the Company or any Subsidiary of any operating business or the capital stock of any other person;
(nm) any agreement contracts and other agreements requiring the payment to any person of a brokerage or sales commission or a finder's fee, including contracts or referral fee other agreements with consultants which provide for aggregate payments in excess of $100,000;
(n) contracts, indentures, mortgages, promissory notes, loan agreements, guaranties, security agreements, pledge agreements, and other than arrangements agreements relating to pay commission the borrowing of money or fees to employees in the ordinary course of business)securing any such liability;
(o) any agreement distributorship or note relating to or evidencing outstanding indebtedness for borrowed moneylicensing agreements;
(p) any leasecontracts under which the Company or the Subsidiary will acquire or has acquired ownership of, sublease or license to, intangible property, including software (other than software licensed by the Company as an end user for less than $100,000 and not distributed by it);
(q) leases, subleases or other agreement agreements under which Seller the Company or the Subsidiary is lessor or lessee of any real property or equipment or other tangible property with respect to obligations in excess of $25,000;
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as of the date hereof, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resourcesproperty; andor
(r) any other material contract or other agreement whether or not made in the ordinary course of businessbusiness the breach of which would have or may have a Material Adverse Effect. True The Company has made available to the Purchasers true and complete copies of all of the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on in Section 3.11 of the Seller Disclosure Schedule. All of the contracts and other agreements listed in Section 3.11 of the Disclosure Schedule have been furnished to BEA. Each of such contracts is are valid, subsisting, in full force and effect, binding upon Sellerthe Company or the applicable Subsidiary, and to the best knowledge of Sellerthe Company, binding upon the other parties thereto in accordance with their terms, except where the failure to be valid, binding, in full force and Seller effect would not have a Material Adverse Effect. The Company or the applicable Subsidiary has satisfied in all material respects or provided for in all material respects all of its liabilities and obligations thereunder which are presently required to be satisfied or provided for, and is not in default under any of them, nor, except where the failure to so satisfy or provide or not be in default would not have a Material Adverse Effect. To the best knowledge of Sellerthe Company, is any no other party to any such contract or other agreement is in material default thereunder, nor nor, to the best knowledge of the Company, does any condition exist that with notice or lapse of time or both, both would constitute a default thereunder, except, in each case, such except for defaults as that would not, individually singly or in the aggregate, have a material adverse effect on the SellerMaterial Adverse Effect.
Appears in 1 contract
Samples: Series J Convertible Preferred Stock Purchase Agreement (Viacell Inc)
Contracts and Other Agreements. (a) Section 3.8 3.13(a) of the Seller Disclosure Schedule sets forth a list listing of all of the following contracts and other agreements (which are currently in force) to which Seller the Company or any such subsidiary of the Company is a party or by or to which Seller the Company or Seller's any subsidiary of the Company or any of their respective assets or properties are bound or subject:
(ai) any agreement or series of related contracts and other agreements requiring aggregate payments after the date hereof by or to Seller of more than $25,000;
(b) any agreement with or for the benefit of any current or former officer, director, stockholder, employee or consultant of Seller;
(c) any agreement with any labor union or association representing any employee of Selleremployee;
(dii) any agreement contracts and other agreements for the purchase sale or sale lease (other than where the Company is a lessee) of materials, supplies, equipment, merchandise any assets or services that contains an escalation, renegotiation properties (other than the Leases) or redetermination clause or that obligates Seller for the grant to any person (other than to the Company) of any preferential rights to purchase all any assets or substantially all properties which provide for payments to the Company of its requirements of a particular product from a supplier, or for periodic minimum purchases of a particular product from a supplierat least $100,000;
(eiii) any agreement for (i) sale contracts and other agreements relating to the acquisition by the Company of any operating business or block of business of any other person;
(iv) contracts relating to the assets disposition or properties acquisition of Sellerany investment (excluding investments in the ordinary course of business in debt instruments) or any interest in any person outside the ordinary course of business;
(v) joint venture, partnership, management, consulting and employment agreements;
(vi) contracts or other agreements under which the Company agrees to indemnify any party, other than in the ordinary course of business business, consistent with past practice, or (ii) for the grant to any person share a Tax liability of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties other than stock option and warrant agreements or instruments listed in Section 3.3.2 of the Seller Disclosure Schedule or pursuant to subsection (b) of this Section 3.8party;
(fvii) any partnership or joint venture agreement;
(g) any agreement of surety, guarantee or indemnification, contracts and other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $25,000;
(h) any agreement containing covenants restricting the Company or any of Seller not to compete its subsidiaries from competing in any line of business, in any geographic area business or with any person in any geographical area or requiring the Company or any of its subsidiaries to engage in any line of business or containing covenants of any other person not to compete with Seller the Company or any of its subsidiaries in any line of business or in any geographical area;
(viii) contracts and other agreements containing restrictions on the incurrence of Seller; indebtedness by the Company or any of its subsidiaries;
(iix) contracts and other agreements relating to the making of any agreement granting loan or restricting advance by the right Company or any of Seller to use any Intellectual Property its subsidiaries (as defined hereinafterit being understood that accounts receivable booked in the ordinary course of business do not constitute loans or advances for the purpose of this clause (ix));
(jx) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(k) any agreement with any holder of securities of Seller as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(l) any agreement obligating Seller to deliver services or product enhancements or containing a "most favored nation" pricing clause;
(m) any agreement relating to the acquisition by Seller of any operating business or the capital stock of any other person;
(n) any agreement requiring the payment to any person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commission or fees to employees trade payables incurred in the ordinary course of business);
, (oa) any contract or other agreement relating to the borrowing of money by the Company or any of its subsidiaries or (b) the direct or indirect guaranty by the Company or any of its subsidiaries of any obligation of $100,000 or more, an agreement by the Company or any of its subsidiaries to service the repayment of borrowed money, or any other contingent obligations of the Company or any of its subsidiaries in respect of indebtedness, of any other person, including, (1) any agreement or note arrangement relating to the maintenance of compensating balances, (2) any agreement or arrangement with respect to lines of credit, (3) any agreement to advance or supply funds to any other person, (4) any agreement to pay for property, products or services of any other person, whether or not such property, products or services are conveyed, delivered or rendered, (5) any keep-well, make-whole or maintenance of working capital or earnings or similar agreement, (6) any guaranty with respect to any lease or other similar periodic payments to be made by any such person or (7) agreements evidencing outstanding indebtedness any obligations pursuant to any lease of real or personal property, or a combination thereof, which obligations are required to be classified and accounted for borrowed moneyas capital leases under GAAP;
(pxi) any lease, sublease all contracts or other agreement under agreements pursuant to which Seller is lessor the Company or lessee any of its subsidiaries licenses, leases or uses any real property computer software or equipment or other tangible property with respect to obligations in excess of $25,000;
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that software applications which are ordinary and customary for the software industry and that are related material to the Seller products which have been delivered as business of the date hereofCompany and its consolidated subsidiaries, any agreement that requires Seller to deliver, or undertake the development of, any new product, customized product, substantial upgrade, new version or similar work product where such delivery or development requires Seller to utilize substantial personnel or financial resourcestaken as a whole; and
(rxii) any other material agreement whether all outstanding proxies, powers of attorney, or not similar delegations of authority.
(b) There have been delivered or made in the ordinary course of business. True available to CVCA true and complete copies of all of the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on in Section 3.13(a) of the Seller Disclosure Schedule have been furnished to BEAor in any other Section of the Disclosure Schedule. Each of such contracts is validcontract and other agreement (i) is, subsistingto the Company's knowledge, in full force and effect, binding upon Seller(ii) constitutes a legal, valid, and binding obligation of (1) the Company or the subsidiary of the Company party thereto and (2) to the best knowledge of SellerCompany's knowledge, binding upon the each other parties thereto party thereto, and (iii) is enforceable in accordance with their its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and Seller other similar laws relating to or affecting creditors' rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing, except where the failure of any such contract or agreement to be enforceable has not, individually or in the aggregate, had a Material Adverse Change. The Company has not in default under received any notice, whether written or oral, of them, termination or intention to terminate from any other party to such contract or agreement. Neither the Company or any subsidiary of the Company (as the case may be) nor, to the best knowledge of SellerCompany's knowledge, is any other party to any such contract or other agreement is in violation or breach of or default thereunder, nor does under any condition exist that such contract or agreement (or with or without notice or lapse of time or both, would constitute a be in violation or breach of or default thereunderunder any such contract or agreement), exceptwhich violation, in each casebreach, such defaults as would notor default has had, individually or in the aggregate, have a material adverse effect on the SellerMaterial Adverse Change.
Appears in 1 contract
