Contracts and Other Agreements. (a) Section 3.13(a) of the Seller Disclosure Schedule sets forth a true and complete list of all of the following Contracts to which a Target Entity is a party or by which any of its assets, properties or rights is bound (each such contract of the following types, whether or not listed in Section 3.13(a) of the Seller Disclosure Schedule, a “Material Contract”) other than Reinsurance Contracts: (i) all partnership, joint venture, shareholders’ or other similar contacts with any Person; (ii) all Contracts with a stockholder, equity holder, director or officer of any Target Entity, other than employment agreements or customary confidentiality agreements and invention assignment agreements entered into with Employees generally, but including any Contract that would require the payment of a cash bonus to any director, officer or employee of any Target Entity as a result of the consummation of the transactions contemplated hereby; (iii) all Contracts that (A) contain covenants that restrict the ability of any Target Entity or any of its Affiliates to compete in any line of business or that would so restrict Purchaser or its Affiliates after the Closing, or (B) grant any exclusive rights to make, sell, or distribute any Target Entity’s material products and services, or otherwise prohibit or limit in any material respect the right of the any Target Entity to develop, manufacture, market, sell, or distribute any material products or services; (iv) all Contracts related to Indebtedness; (v) all Contracts (A) involving payments by or to any Target Entity in excess of $100,000 during the preceding twelve (12) months or (B) that cannot be cancelled or terminated by any Target Entity on not more than ninety (90) days’ notice without penalty or premium increase; (vi) all Contracts that are in respect of employment, compensation bonus, retention, severance pay, termination pay, change of control and deferred compensation, and other similar Contracts, between any Target Entity and any Employee or consultant or contractor to any Target Entity; (vii) all Contracts that relate to any settlement agreement, other than (A) releases immaterial in nature or entered into with former employees or independent contractors of any Target Entity in the ordinary course of business in connection with the cessation of such employee’s or independent contractor’s employment with or services to such Target Entity, (B) settlement agreements for cash only (which has been paid or reserved for) or (C) settlement agreements entered into more than two (2) years prior to the date of this Agreement under which none of Target Entities have any continuing obligations; (viii) (A) any contract between any Target Entity, on the one hand, and Seller or any Affiliate of Seller (other than the Target Entities), on the other hand, (B) any guarantee by Seller or any Affiliate of Seller (other than the Target Entities) in favor of or in respect of any obligations of the Target Entities or any guarantee by any Target Entity in favor of or in respect of any obligations of Seller or any Affiliate of Seller (other than the Target Entities), (C) any contract between any Target Entities, on the one hand, and any director or officer (or any Affiliate of a director or officer (other than the Target Entities)), on the other hand or (D) any contract between any Target Entity and any third party entered into for the benefit of Seller or any Affiliate of Seller (other than the Target Entities); (ix) any Producer Contract with a Producer of any Target Entity who was responsible for placing 5% or more of the aggregate gross written premium of the Business for the year ended December 31, 2018 or any Producer Contract that is not in the form of a standard form automobile dealer agreement; (x) any collective bargaining agreement; (xi) any contracts or agreements material to the Target Entities pursuant to which any Target Entity (A) is licensed or otherwise permitted to use any Intellectual Property, (B) grants a license to, or otherwise permits, any Person to use any Intellectual Property owned by any Target Entity and (C) obtains any IT Systems, such as data center or hosting or maintenance of Software services; (xii) any contract or agreement that provides for a third person to create or develop for or on behalf of the Target Entities any Intellectual Property that is material to the Target Entities; (xiii) any contract or agreement that relates to the acquisition or disposition by any Target Entity of any business or operations, capital stock or assets of any Person or any real estate as to which there are any material ongoing obligations of such Target Entity; (xiv) any contract or agreement relating to any material interest rate, derivatives or hedging transaction; (xv) any investment advisory agreements or any other contracts relating to investment management, investment advisory or subadvisory services to which any Target Entity is a party; (xvi) any third-party administration contracts with an unaffiliated third party; (xvii) any contract that provides the counterparty thereto with any additional rights or any Target Entity with any additional obligations in the event of a ratings downgrade of such Target Entity; (xviii) any Contract with any Material Customer or Material Vendor; (xix) any Contract providing for capital expenditures in excess of $250,000; (xx) any outstanding general or special powers of attorney executed by or on behalf of any Target Entity; and (xxi) all other Contracts material to the Business. (b) As of the date of this Agreement, each Material Contract and Producer Contract to which any Target Entity is a party is in full force and effect and constitutes a legal, valid, binding agreement, enforceable against such Target Entity and, to the knowledge of Seller, each other party thereto, in accordance with its terms. No Target Entity or, to the knowledge of Seller, any other party to each such Material Contract or Producer Contract is in material violation or breach of, or in material 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 material default under, or permit the termination of, any such Material Contract or Producer Contract. No Material Contract contains any provision that by its own terms would result in a modification of the agreement by reason of the consummation of the transactions contemplated hereby or the Transaction Documents. Except as set forth on Section 3.13(b)(i) of the Seller Disclosure Schedule, no Target Entity has received written notice of the cancellation or termination of any Material Contract. Except as set forth on Section 3.13(b)(ii) of the Seller Disclosure Schedule, none of the Material Contracts contain any provision providing that the other party thereto may terminate, amend or alter the pricing or other terms thereof by reason of the transactions contemplated hereby or by the Transaction Documents or has a right to consent to the transaction contemplated hereby or by the Transaction Documents. (c) Seller has made available to Purchaser true and complete copies of each Material Contract set forth on Section 3.13(a) of the Seller Disclosure Schedule, together with all material amendments and supplements thereto, and the form(s) of Producer Contracts used in the Business.
Appears in 3 contracts
Samples: Equity Interest Purchase Agreement (Fortegra Group, LLC), Equity Interest Purchase Agreement (Fortegra Group, LLC), Equity Interest Purchase Agreement (Tiptree Inc.)
Contracts and Other Agreements. (a) Section 3.13(a3.12(a) of the Seller Disclosure Schedule sets forth contains a true and complete list of all of the following Contracts contracts to which a Target Entity the Companies is a party or by which any of its assets, properties or rights their respective assets is bound (each such contract Contracts, together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage contracts) listed or otherwise disclosed in Section 3.13 of the following types, whether or not listed Seller Disclosure Schedule and all Company IP Agreements set forth in Section 3.13(a3.15(b) of the Seller Disclosure Schedule) (each, a “Material Contract”) other than Reinsurance Contracts:):
(i) all contracts with any person containing any provision or covenant prohibiting or limiting the ability of any of the Companies to engage in any business activity or compete with any Person in any geographical area;
(ii) all partnership, joint venture, shareholders’ or other similar contacts contracts with any Person;
(iiiii) all Contracts with a stockholder, equity holder, director or officer each Contract of any Target Entity, other than employment agreements or customary confidentiality agreements and invention assignment agreements entered into with Employees generally, but including any Contract that would require the payment of a cash bonus to any director, officer or employee of any Target Entity as a result of the consummation of the transactions contemplated hereby;
(iii) all Contracts that (A) contain covenants that restrict the ability of any Target Entity or any of its Affiliates to compete in any line of business or that would so restrict Purchaser or its Affiliates after the Closing, or (B) grant any exclusive rights to make, sell, or distribute any Target Entity’s material products and services, or otherwise prohibit or limit in any material respect the right of the any Target Entity to develop, manufacture, market, sell, or distribute any material products or services;
(iv) all Contracts related to Indebtedness;
(v) all Contracts (A) Companies involving payments by or to any Target Entity aggregate consideration in excess of $100,000 during the preceding twelve (12) months or (B) that 10,000 and which, in each case, cannot be cancelled by such Company without penalty or terminated by any Target Entity on not without more than ninety (90) days’ notice without penalty notice;
(iv) all Contracts that require any of the Companies to purchase its total requirements of any product or premium increaseservice from a third party or that contain “take or pay” provisions;
(v) all Contracts that provide for the indemnification by any of the Companies of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(vi) all Contracts that are in respect relate to the acquisition or disposition of employmentany business, compensation bonusa material amount of stock, retentionlimited liability company/membership interests or assets of any other Person or any real property (whether by merger, severance paysale of stock, termination paysale of limited liability company/membership interests, change sale of control and deferred compensation, and other similar Contracts, between any Target Entity and any Employee assets or consultant or contractor to any Target Entityotherwise);
(vii) all broker, distributor, dealer, representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts that relate to which any settlement agreementof the Companies is a party, other than (A) releases immaterial in nature or entered into with former employees or independent contractors each case involving annual expenses in excess of any Target Entity in the ordinary course of business in connection with the cessation of such employee’s or independent contractor’s employment with or services to such Target Entity, (B) settlement agreements for cash only (which has been paid or reserved for) or (C) settlement agreements entered into more than two (2) years prior to the date of this Agreement under which none of Target Entities have any continuing obligations$10,000;
(viii) all employment agreements and Contracts with independent contractors or consultants (Aor similar arrangements) to which any contract between any Target Entity, on the one hand, and Seller or any Affiliate of Seller (other than the Target Entities), on the other hand, (B) any guarantee by Seller or any Affiliate of Seller (other than the Target Entities) in favor of or in respect of any obligations of the Target Entities Companies is a party or any guarantee by any Target Entity in favor of receives the services thereof and which are not cancellable without material penalty or in respect of any obligations of Seller or any Affiliate of Seller without more than ninety (other than the Target Entities), (C90) any contract between any Target Entities, on the one hand, and any director or officer (or any Affiliate of a director or officer (other than the Target Entities)), on the other hand or (D) any contract between any Target Entity and any third party entered into for the benefit of Seller or any Affiliate of Seller (other than the Target Entities)days’ notice;
(ix) any Producer Contract with a Producer except for Contracts relating to trade receivables, all Contracts relating to Indebtedness (including, without limitation, guarantees) of any Target Entity who was responsible for placing 5% or more of the aggregate gross written premium of the Business for the year ended December 31, 2018 or any Producer Contract that is not in the form of a standard form automobile dealer agreementCompanies;
(x) all Contracts with any collective bargaining agreement;
(xi) any contracts or agreements material to the Target Entities pursuant Governmental Authority to which any Target Entity (A) is licensed or otherwise permitted to use any Intellectual Property, (B) grants a license to, or otherwise permits, any Person to use any Intellectual Property owned by any Target Entity and (C) obtains any IT Systems, such as data center or hosting or maintenance of Software services;
(xii) any contract or agreement that provides for a third person to create or develop for or on behalf of the Target Entities any Intellectual Property that is material to the Target Entities;
(xiii) any contract or agreement that relates to the acquisition or disposition by any Target Entity of any business or operations, capital stock or assets of any Person or any real estate as to which there are any material ongoing obligations of such Target Entity;
(xiv) any contract or agreement relating to any material interest rate, derivatives or hedging transaction;
(xv) any investment advisory agreements or any other contracts relating to investment management, investment advisory or subadvisory services to which any Target Entity Companies is a party;
(xvixi) all Reinsurance Contracts to which any third-of the Companies is a party administration contracts with or under which any Company is an unaffiliated third partyobligor, beneficiary, or has any rights;
(xviixii) all managing general agency Contracts and any contract that provides other Contracts for the counterparty thereto with provision or performance of services relating to the marketing, brokering, solicitation or procurement, servicing or administration, underwriting, or pricing of Insurance Policies (including without limitation all offers, sales, renewals, and cancellations thereof) or relating to the administration, adjustment, investigation, defense, or payment of any additional rights or claims under any Target Entity with any additional obligations in the event of a ratings downgrade of such Target EntityInsurance Policies;
(xviiixiii) any Contract all collective bargaining agreements or Contracts with any Material Customer or Material Vendor;
(xix) Union to which any Contract providing for capital expenditures in excess of $250,000;
(xx) any outstanding general or special powers of attorney executed by or on behalf of any Target Entitythe Companies is a party; and
(xxixiv) all any other Contracts Contract that is material to any of the BusinessCompanies or may reasonably be expected to have a material effect or any Insurance Permit or the financial condition, capitalization, or liabilities of any of the Companies, and not previously disclosed pursuant to this Section 3.12.
(b) As of the date of this Agreement, each Each Material Contract is valid and Producer Contract to which any Target Entity is a party binding on the respective Company, as applicable in accordance with its terms and is in full force and effect and constitutes a legal, valid, binding agreement, enforceable against such Target Entity and, to effect. None of the knowledge of Seller, each other party thereto, in accordance with its terms. No Target Entity Companies or, to the knowledge Knowledge of SellerSellers, any other party to each such Material Contract or Producer Contract thereto is in material violation breach of or default under (or is alleged to be in breach ofof or default under), or in material default under, nor has there occurred an event provided or condition that with the passage of time or giving of notice (or both) would constitute a material default under, or permit the termination of, received any such Material Contract or Producer Contract. No Material Contract contains any provision that by its own terms would result in a modification of the agreement by reason of the consummation of the transactions contemplated hereby or the Transaction Documents. Except as set forth on Section 3.13(b)(i) of the Seller Disclosure Schedule, no Target Entity has received written notice of the cancellation or termination of any intention to terminate, any Material Contract. Except as set forth on Section 3.13(b)(ii) No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the Seller Disclosure Schedule, none of the Material Contracts contain any provision providing that the other party thereto may terminate, amend or alter the pricing acceleration or other terms thereof by reason changes of any right or obligation or the transactions contemplated hereby or by the Transaction Documents or has a right loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been made available to consent to the transaction contemplated hereby or by the Transaction DocumentsPurchaser Representative.
(c) Seller Representative has made available to Purchaser Representative true and complete copies of each Material Contract set forth on Section 3.13(a) of the Seller Disclosure ScheduleContract, together with all material amendments and supplements thereto, and the form(s) of Producer Contracts used in the Business.
Appears in 2 contracts
Contracts and Other Agreements. (a) Section 3.13(a) 2.10 of the Seller Company Disclosure Schedule sets forth a true and complete list of includes, but is not limited to, all contracts that are material to the business or operations of the following Contracts to which a Target Entity Company. Except as set forth in Section 2.10 of the Company Disclosure Schedule, the Company does not have, is not a party to nor is it or its assets or properties bound by which or subject to (any of its assets, properties or rights is bound (each such contract of the following types, whether or not listed in Section 3.13(a) of the Seller Disclosure Schedulefollowing, a “Material Contract”) other than Reinsurance Contracts:):
(i) all partnershipany agreement, other than a material transfer agreement or technology evaluation agreement, (A) involving research, development or the license of Company Intellectual Property or Technology (as defined in Section 2.12), (B) granting a right of first refusal, or right of first offer or comparable right with respect to Company Intellectual Property or Technology, (C) establishing a joint venture, shareholders’ 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 of milestone payments or royalties, (E) containing a “most favored nation” pricing or terms clause, or (F) granting marketing, distribution or similar contacts rights with respect to any Person;
Company Intellectual Property or Technology; (ii) all Contracts with a stockholderany indenture, equity holdertrust agreement, director loan agreement or officer of any Target Entitynote that involves or evidences outstanding indebtedness, other than employment agreements obligations or customary confidentiality agreements and invention assignment agreements entered into with Employees generally, but including any Contract that would require the payment of a cash bonus to any director, officer or employee of any Target Entity as a result of the consummation of the transactions contemplated herebyliabilities for borrowed money;
(iii) all Contracts that (A) contain covenants that restrict the ability of any Target Entity agreement which relates primarily to surety, guarantee or any of its Affiliates to compete in any line of business or that would so restrict Purchaser or its Affiliates after the Closing, or (B) grant any exclusive rights to make, sell, or distribute any Target Entity’s material products and services, or otherwise prohibit or limit in any material respect the right of the any Target Entity to develop, manufacture, market, sell, or distribute any material products or servicesindemnification;
(iv) all Contracts related to Indebtednessany agreement that limits or restricts the Company or any of its affiliates or successors in competing or engaging in any line of business, without limitation, in any therapeutic category, in any geographic area or with any person;
(v) all Contracts (A) involving payments by any interest rate, equity or to any Target Entity in excess of $100,000 during the preceding twelve (12) months other swap or (B) that cannot be cancelled or terminated by any Target Entity on not more than ninety (90) days’ notice without penalty or premium increasederivative instrument;
(vi) all Contracts that are in respect of employment, compensation bonus, retention, severance pay, termination pay, change of control and deferred compensation, and other similar Contracts, between any Target Entity and any Employee or consultant or contractor agreement obligating the Company to any Target Entityregister securities under the Securities Act;
(vii) all Contracts that relate any agreement for the sale of any of the securities, material assets or properties of the Company or for the grant to any settlement agreementperson of any options, rights of first refusal, or preferential or similar rights to purchase any of such securities, assets or properties other than the Company Options;
(Aviii) releases immaterial in nature or entered into with former employees or independent contractors any agreement relating to the acquisition by the Company of any Target Entity operating business or the capital stock issued by any other person;
(ix) any agreement which cannot be terminated by the Company on 30 days’ or less notice without premium or penalty requiring the payment to any person of a commission or fee other than in the ordinary course of business in connection consistent with the cessation past practice or providing for sharing of such employee’s fees, rebating of charges, or independent contractor’s employment with or services to such Target Entity, (B) settlement agreements for cash only (which has been paid or reserved for) or (C) settlement agreements entered into more than two (2) years prior to the date of this Agreement under which none of Target Entities have any continuing obligations;
(viii) (A) any contract between any Target Entity, on the one hand, and Seller or any Affiliate of Seller (other than the Target Entities), on the other hand, (B) any guarantee by Seller or any Affiliate of Seller (other than the Target Entities) in favor of or in respect of any obligations of the Target Entities or any guarantee by any Target Entity in favor of or in respect of any obligations of Seller or any Affiliate of Seller (other than the Target Entities), (C) any contract between any Target Entities, on the one hand, and any director or officer (or any Affiliate of a director or officer (other than the Target Entities)), on the other hand or (D) any contract between any Target Entity and any third party entered into for the benefit of Seller or any Affiliate of Seller (other than the Target Entities);
(ix) any Producer Contract with a Producer of any Target Entity who was responsible for placing 5% or more of the aggregate gross written premium of the Business for the year ended December 31, 2018 or any Producer Contract that is not in the form of a standard form automobile dealer agreementsimilar arrangements;
(x) any collective bargaining agreement;agreement involving a payment or value in excess of $25,000 which cannot be terminated by the Company on 30 days’ or less notice without premium or penalty with any 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 to the knowledge of the Company any officer or director of the Company has an interest,; or
(xi) any contracts other agreement involving an expenditure by the Company of more than $25,000 annually or agreements material to $50,000 in the Target Entities pursuant to aggregate which any Target Entity (A) is licensed cannot be terminable by the Company on 30 days’ or otherwise permitted to use any Intellectual Property, (B) grants a license to, less notice without premium or otherwise permits, any Person to use any Intellectual Property owned by any Target Entity and (C) obtains any IT Systems, such penalty. Except as data center or hosting or maintenance of Software services;
(xii) any contract or agreement that provides for a third person to create or develop for or on behalf set forth in Section 2.10 of the Target Entities any Intellectual Property that is material to the Target Entities;
(xiii) any contract or agreement that relates to the acquisition or disposition by any Target Entity of any business or operationsCompany Disclosure Schedule, capital stock or assets of any Person or any real estate as to which there are any material ongoing obligations of such Target Entity;
(xiv) any contract or agreement relating to any material interest rate, derivatives or hedging transaction;
(xv) any investment advisory agreements or any other contracts relating to investment management, investment advisory or subadvisory services to which any Target Entity is a party;
(xvi) any third-party administration contracts with an unaffiliated third party;
(xvii) any contract that provides the counterparty thereto with any additional rights or any Target Entity with any additional obligations in the event of a ratings downgrade of such Target Entity;
(xviii) any Contract with any Material Customer or Material Vendor;
(xix) any Contract providing for capital expenditures in excess of $250,000;
(xx) any outstanding general or special powers of attorney executed by or on behalf of any Target Entity; and
(xxi) all other Contracts material to the Business.
(b) As of the date of this Agreement, each Material Contract and Producer Contract to which any Target Entity is a party is in full force and effect and constitutes a legal, valid, binding agreement, enforceable against such Target Entity andContracts are, to the knowledge of Sellerthe Company, each (A) valid, subsisting, in full force and effect, (B) binding upon the Company and (C) binding upon the other party thereto, parties thereto in accordance with their terms, and the Company has satisfied in full or provided for all of its terms. No Target Entity orliabilities 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 knowledge of Sellerthe Company, is any other party to each any such Material Contract contract or Producer Contract is other agreement in material violation or breach ofdefault thereunder, or in material default undernor, nor has there occurred an event or to the knowledge of the Company, does any condition exist that with the passage notice or lapse of time or giving of notice (or both) both would constitute a material default underthereunder except in each case in this Section 2.10 for failure to pay, accrue, satisfy liabilities and obligations and conditions which do not constitute a Company Material Adverse Effect. True and complete copies of all of the Material Contracts (and all amendments or permit other modifications thereto) and all of the termination ofcontracts which are listed in Section 2.11(a) or Section 2.12 of the Company Disclosure Schedule have been provided previously to Parent. The Company has no knowledge of any plan or intention of any counterparty to a Material Contract, and has not received any written threat or notice from any such Material Contract person, to terminate, cancel or Producer Contractotherwise materially and adversely modify its relationship with the Company. No Material Contract contains requires any provision that consent, approval or waiver by its own terms would result the other parties thereto in a modification of connection with this Agreement, the agreement by reason of Registration Rights Agreement or the consummation of the transactions contemplated hereby and thereby in order to avoid any conflict with, any violation of, or the Transaction Documents. Except as set forth on Section 3.13(b)(i) default under (with or without notice or lapse of the Seller Disclosure Scheduletime, no Target Entity has received written notice or both), or to avoid giving rise to any right of the cancellation termination, cancellation, modification or termination acceleration of any Material Contract. Except as set forth on Section 3.13(b)(ii) obligation or loss of the Seller Disclosure Scheduleany benefit under, none of the Material Contracts contain any provision providing that the other party thereto may terminate, amend or alter the pricing or other terms thereof by reason of the transactions contemplated hereby or by the Transaction Documents or has a right to consent to the transaction contemplated hereby or by the Transaction Documentscontract.
(c) Seller has made available to Purchaser true and complete copies of each Material Contract set forth on Section 3.13(a) of the Seller Disclosure Schedule, together with all material amendments and supplements thereto, and the form(s) of Producer Contracts used in the Business.
Appears in 1 contract
Samples: Merger Agreement (pSivida LTD)
Contracts and Other Agreements. (a) Section 3.13(a) of the Seller The Disclosure Schedule Letter sets forth a true and complete list of all of the following Contracts contracts and other agreements hereinafter referred to in this Section 3.16, which are currently in effect and to which a Target Entity any Seller is a party or by or to which any of it or its assets, assets or properties are bound or rights is bound (each such contract of the following types, whether or not listed in Section 3.13(a) of the Seller Disclosure Schedule, a “Material Contract”) other than Reinsurance Contractssubject:
(i) all partnershipwritten agreements with any current or former officer, joint venturedirector, shareholders’ employee, consultant, agent or other similar contacts with any Personrepresentative having more than six months to run from the date hereof or providing for an obligation to pay and/or accrue compensation of $50,000 or more per annum or providing for the payment of fees or other consideration in excess of $50,000;
(ii) all Contracts agreements with a stockholder, equity holder, director any labor union or officer of association representing any Target Entity, other than employment agreements or customary confidentiality agreements and invention assignment agreements entered into with Employees generally, but including any Contract that would require the payment of a cash bonus to any director, officer or employee of any Target Entity as a result of the consummation of the transactions contemplated herebyemployee;
(iii) all Contracts agreements for the purchase or sale of inventory, equipment or services that contain an escalation, renegotiation or redetermination clause or which cannot be canceled without liability, premium or penalty if written notice is given thirty days prior to the effective date of the notice;
(Aiv) contain covenants that restrict agreements for the ability sale of any Target Entity or any of its Affiliates assets or properties other than in the ordinary course of business and for a sale price exceeding $50,000 in any one case (or in the aggregate, in the case of any series of related agreements) or for the grant to any person of any preferential rights to purchase any of its or their assets or properties;
(v) agreements (including, without limitation, leases of real property) calling for an aggregate purchase price or aggregate payments in any one year of more than $50,000 in any one case (or in the aggregate, in the case of any series of related agreements);
(vi) joint venture agreements;
(vii) contracts or other agreements under which it agrees to indemnify any party other than in the ordinary course of business;
(viii) agreements containing covenants of any Seller not to compete in any line of business or that would so restrict Purchaser or its Affiliates after the Closing, or (B) grant with any exclusive rights to make, sell, or distribute any Target Entity’s material products and services, or otherwise prohibit or limit person in any material respect the right of the any Target Entity to develop, manufacture, market, sell, geographical area or distribute any material products or services;
(iv) all Contracts related to Indebtedness;
(v) all Contracts (A) involving payments by or to any Target Entity in excess of $100,000 during the preceding twelve (12) months or (B) that cannot be cancelled or terminated by any Target Entity on not more than ninety (90) days’ notice without penalty or premium increase;
(vi) all Contracts that are in respect of employment, compensation bonus, retention, severance pay, termination pay, change of control and deferred compensation, and other similar Contracts, between any Target Entity and any Employee or consultant or contractor to any Target Entity;
(vii) all Contracts that relate to any settlement agreement, other than (A) releases immaterial in nature or entered into with former employees or independent contractors covenants of any Target Entity other person not to compete with such Seller in the ordinary course any line of business in connection with the cessation of such employee’s or independent contractor’s employment with or services to such Target Entity, (B) settlement agreements for cash only (which has been paid or reserved for) or (C) settlement agreements entered into more than two (2) years prior to the date of this Agreement under which none of Target Entities have any continuing obligations;
(viii) (A) any contract between any Target Entity, on the one hand, and Seller or any Affiliate of Seller (other than the Target Entities), on the other hand, (B) any guarantee by Seller or any Affiliate of Seller (other than the Target Entities) in favor of or in respect of any obligations of the Target Entities or any guarantee by any Target Entity in favor of or in respect of any obligations of Seller or any Affiliate of Seller (other than the Target Entities), (C) any contract between any Target Entities, on the one hand, and any director or officer (or any Affiliate of a director or officer (other than the Target Entities)), on the other hand or (D) any contract between any Target Entity and any third party entered into for the benefit of Seller or any Affiliate of Seller (other than the Target Entities)geographical area;
(ix) any Producer Contract with a Producer agreements relating to the making of any Target Entity who was responsible loan by the Sellers except for placing 5% or more of the aggregate gross written premium of the Business advances to employees for the year ended December 31, 2018 or any Producer Contract that is not in the form of a standard form automobile dealer agreementnormal reimbursable business expenses;
(x) agreements relating to the borrowing of money by any collective bargaining agreementSeller (including mortgages, deeds of trust, indentures or other similar documents), or the direct or indirect guaranty by such Seller of any obligation for, or an agreement by such Seller to service, the repayment of borrowed money, or any other contingent obligation in respect of indebtedness of any other person or governmental or regulatory body;
(xi) any contracts material agreements for or agreements material relating to the Target Entities pursuant to which any Target Entity (A) is licensed computers, computer equipment, computer software or otherwise permitted to use any Intellectual Property, (B) grants a license to, or otherwise permits, any Person to use any Intellectual Property owned by any Target Entity and (C) obtains any IT Systems, such as data center or hosting or maintenance of Software computer services;
(xii) any contract or agreement that provides for a third person to create or develop for or on behalf of the Target Entities any Intellectual Property that is material to the Target Entities;
(xiii) any contract or agreement that relates to the acquisition or disposition by any Target Entity of any business or operations, capital stock or assets of any Person or any real estate as to which there are any material ongoing obligations of such Target Entity;
(xiv) any contract or agreement relating to any material interest rate, derivatives or hedging transaction;
(xv) any investment advisory agreements or any other contracts relating to investment management, investment advisory or subadvisory services to which any Target Entity is a party;
(xvi) any third-party administration contracts with an unaffiliated third party;
(xvii) any contract that provides the counterparty thereto with any additional rights or any Target Entity with any additional obligations in the event of a ratings downgrade of such Target Entity;
(xviii) any Contract with any Material Customer or Material Vendor;
(xix) any Contract providing for capital expenditures requiring payments in excess of $250,000;
(xx) 50,000 in any outstanding general or special powers of attorney executed by or on behalf of any Target Entity; and
(xxi) all other Contracts material to the Businessyear.
(b) As Except as set forth in the Disclosure Letter, there have been delivered or made available to Buyer true and complete copies of all of the date of this Agreementcontracts and other agreements set forth in the Disclosure Letter. Except as described in the Disclosure Letter, each Material Contract there is no default by any Seller under any contract or other agreement set forth in the Disclosure Letter (including any Lease), and Producer Contract to which any Target Entity is a party is in full force and effect and constitutes a legal, valid, binding agreement, enforceable against such Target Entity and, to the no Seller has knowledge of Seller, each any breach or anticipatory branch by any other party thereto. Except as provided in the Disclosure Letter, in accordance with its terms. No Target Entity or, to the knowledge of Seller, any other party to each such Material Contract or Producer Contract is in material violation or breach of, or in material 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 material default under, or permit the termination of, any such Material Contract or Producer Contract. No Material Contract contains any provision that by its own terms would result in a modification of the agreement by reason of the consummation of the transactions contemplated hereby by this Agreement will not result in a default under any contract or agreement set forth in the Disclosure Letter (including any Lease) or the Transaction Documents. Except as set forth on Section 3.13(b)(i) of the Seller Disclosure Schedule, no Target Entity has received written notice of the cancellation or termination of any Material Contract. Except as set forth on Section 3.13(b)(ii) of the Seller Disclosure Schedule, none of the Material Contracts contain any provision providing that the other party thereto may terminate, amend or alter the pricing or other terms thereof by reason of the transactions contemplated hereby or by the Transaction Documents or has a right to consent to the transaction contemplated hereby terminate any such contract or by the Transaction Documentsagreement.
(c) Seller has made available to Purchaser true and complete copies of each Material Contract set forth on Section 3.13(a) of the Seller Disclosure Schedule, together with all material amendments and supplements thereto, and the form(s) of Producer Contracts used in the Business.
Appears in 1 contract
Contracts and Other Agreements. (a) Section 3.13(a) 2.12 of the Seller Disclosure Schedule (indicating in each case which of clauses (i) through (xiii) is applicable) sets forth a true and complete list of all of material contracts, commitments and other agreements (whether written or oral) related to the following Contracts Business to which a Target Entity Seller is a party or by which any of its assets, properties or rights it is bound in connection with the Business (each such contract collectively, the “Contracts”), including, without limitation, the following:
(i) any current agreement relating to the Purchased IP (other than OTC Software), provided that (x) nondisclosure agreements need not be listed individually (i.e. can be disclosed as a category)(the form of the following types, whether or not listed in which is attached to Section 3.13(a) 2.12 of the Seller Disclosure Schedule, and (y) intellectual property assignment agreements need not be listed individually (i.e. can be disclosed as a “Material Contract”category), provided, however, that with respect to intellectual property assignment agreements with current employees of the Business, such agreements are not required to be disclosed only if such agreements were executed substantially in the form attached to Section 2.12 of the Seller Disclosure Schedule;
(ii) any current agreement with customers or other purchasers of goods or services from Seller involving payments of $25,000 or more;
(iii) any current agreement in which Seller is the purchaser of goods or services involving payments of $25,000 or more;
(iv) any distributor, sales representative or similar agreement related to the Business;
(v) any agreement with any current or former officer, director, member or manager of Seller, or with any Affiliate of any of such Persons pursuant to which the Business has any continuing obligation;
(vi) 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 (other than Reinsurance Contracts:this Agreement) for the disposition of a material portion of the Purchased Assets, other than for the sale of inventory in the ordinary course of business;
(iviii) all partnershipany grant to any Person of any options, joint venturerights of first refusal, shareholders’ right of exclusive negotiation or other preferential or similar contacts rights to purchase any of the Purchased Assets;
(ix) any agreement that limits or restricts the Business from competing or engaging in any line of business, or in any geographic area or with any Person;
(ii) all Contracts with a stockholder, equity holder, director or officer of any Target Entity, other than employment agreements or customary confidentiality agreements and invention assignment agreements entered into with Employees generally, but including any Contract that would require the payment of a cash bonus to any director, officer or employee of any Target Entity as a result of the consummation of the transactions contemplated hereby;
(iii) all Contracts that (A) contain covenants that restrict the ability of any Target Entity or any of its Affiliates to compete in any line of business or that would so restrict Purchaser or its Affiliates after the Closing, or (B) grant any exclusive rights to make, sell, or distribute any Target Entity’s material products and services, or otherwise prohibit or limit in any material respect the right of the any Target Entity to develop, manufacture, market, sell, or distribute any material products or services;
(iv) all Contracts related to Indebtedness;
(v) all Contracts (A) involving payments by or to any Target Entity in excess of $100,000 during the preceding twelve (12) months or (B) that cannot be cancelled or terminated by any Target Entity on not more than ninety (90) days’ notice without penalty or premium increase;
(vi) all Contracts that are in respect of employment, compensation bonus, retention, severance pay, termination pay, change of control and deferred compensation, and other similar Contracts, between any Target Entity and any Employee or consultant or contractor to any Target Entity;
(vii) all Contracts that relate to any settlement agreement, other than (A) releases immaterial in nature or entered into with former employees or independent contractors of any Target Entity in the ordinary course of business in connection with the cessation of such employee’s or independent contractor’s employment with or services to such Target Entity, (B) settlement agreements for cash only (which has been paid or reserved for) or (C) settlement agreements entered into more than two (2) years prior to the date of this Agreement under which none of Target Entities have any continuing obligations;
(viii) (A) any contract between any Target Entity, on the one hand, and Seller or any Affiliate of Seller (other than the Target Entities), on the other hand, (B) any guarantee by Seller or any Affiliate of Seller (other than the Target Entities) in favor of or in respect of any obligations of the Target Entities or any guarantee by any Target Entity in favor of or in respect of any obligations of Seller or any Affiliate of Seller (other than the Target Entities), (C) any contract between any Target Entities, on the one hand, and any director or officer (or any Affiliate of a director or officer (other than the Target Entities)), on the other hand or (D) any contract between any Target Entity and any third party entered into for the benefit of Seller or any Affiliate of Seller (other than the Target Entities);
(ix) any Producer Contract with a Producer of any Target Entity who was responsible for placing 5% or more of the aggregate gross written premium of the Business for the year ended December 31, 2018 or any Producer Contract that is not in the form of a standard form automobile dealer agreement;
(x) any collective bargaining agreementemployment and consulting agreements, non-competition, confidentiality, non-solicitation and similar agreements, employee benefit, bonus, severance, pension, profit-sharing or participation, and similar plans and arrangements, in each case with respect to the Business with current employees or consultants;
(xi) any contracts or agreements material agreement related to the Target Entities pursuant Business requiring the payment to which any Target Entity (A) is licensed or otherwise permitted to use any Intellectual Property, (B) grants a license to, or otherwise permits, any Person to use any Intellectual Property owned by any Target Entity and (C) obtains any IT Systems, such as data center of a commission or hosting or maintenance of Software services;fee; and
(xii) any contract lease, sublease or other agreement that provides for a third person to create under which Seller is lessor or develop for or on behalf of the Target Entities any Intellectual Property that is material to the Target Entities;
(xiii) any contract or agreement that relates to the acquisition or disposition by any Target Entity lessee of any business real or operations, capital stock or assets of any Person or any real estate as to which there are any material ongoing obligations of such Target Entity;
(xiv) any contract or agreement relating to any material interest rate, derivatives or hedging transaction;
(xv) any investment advisory agreements or any other contracts relating to investment management, investment advisory or subadvisory services to which any Target Entity is a party;
(xvi) any third-party administration contracts with an unaffiliated third party;
(xvii) any contract that provides the counterparty thereto with any additional rights or any Target Entity with any additional obligations in the event of a ratings downgrade of such Target Entity;
(xviii) any Contract with any Material Customer or Material Vendor;
(xix) any Contract providing for capital expenditures in excess of $250,000;
(xx) any outstanding general or special powers of attorney executed personal property used by or on behalf of any Target Entity; and
(xxi) all other Contracts material to the Business.
(b) As Seller has delivered to Buyer or its representatives true and complete copies of the date all written Contracts and accurate summaries of this Agreementall oral Contracts (and all amendments or other modifications thereto). All Contracts are valid, each Material Contract and Producer Contract to which any Target Entity is a party is in full force and effect and constitutes a legal, valid, binding agreement, enforceable against such Target Entity Seller and, to the knowledge of Seller, each the other party thereto, parties thereto in accordance with its their respective terms. No Target Entity orSeller is current with all obligations under such Contracts, and has satisfied in full or provided for all of its Liabilities thereunder that are presently required to the knowledge of Seller, any other party to each such Material Contract be satisfied or Producer Contract is in material violation or breach of, or in material 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 material default under, or permit the termination of, any such Material Contract or Producer Contract. No Material Contract contains any provision that by its own terms would result in a modification of the agreement by reason of the consummation of the transactions contemplated hereby or the Transaction Documentsprovided for. Except as set forth on in Section 3.13(b)(i) of the Seller Disclosure Schedule, no Target Entity has received written notice of the cancellation or termination of any Material Contract. Except as set forth on Section 3.13(b)(ii2.12(b) of the Seller Disclosure Schedule, none of the Material Contracts contain Seller or, to Seller’s knowledge, any provision providing that the other party thereto may terminate, amend or alter the pricing or other terms thereof by reason of the transactions contemplated hereby or by the Transaction Documents or has a right to consent to the transaction contemplated hereby or by the Transaction Documents.
(c) Seller has made available to Purchaser true and complete copies of each Material Contract set forth on Section 3.13(a) of the Seller Disclosure Schedule, together with all material amendments and supplements thereto, and the form(s) is in material default of Producer Contracts used in the Businessany of its obligations under any such Contract.
Appears in 1 contract
Contracts and Other Agreements. (a) Section 3.13(a) of the Seller The Everlert Disclosure Schedule sets forth a true and complete list of all of the following Contracts contracts and other agreements to which a Target Entity Everlert is a party or by or to which any of its assets, Everlert or Everlert's assets or properties are bound or rights is bound (each such contract of the following types, whether or not listed in Section 3.13(a) of the Seller Disclosure Schedule, a “Material Contract”) other than Reinsurance Contractssubject:
(ia) all partnership, joint venture, shareholders’ any agreement or other similar contacts with any Personseries of related agreements requiring aggregate payments after the date hereof by or to Everlert of more than $100,000;
(iib) all Contracts any agreement with a or for the benefit of any current or former officer, director, stockholder, equity holderemployee or consultant of Everlert;
(c) any agreement with any labor union or association representing any employee of Everlert;
(d) any agreement for the purchase or sale of materials, director supplies, equipment, merchandise or officer services that contain an escalation, renegotiation or redetermination clause or that obligate Everlert 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 sale of any Target Entityof the assets or properties of Everlert other than 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;
(f) any partnership or joint venture agreement;
(g) any agreement of surety, guarantee or indemnification, other than employment agreements or customary confidentiality agreements and invention assignment agreements entered into in the ordinary course of business with Employees generally, but including any Contract that would require the payment respect to obligations in an aggregate amount not in excess of a cash bonus to any director, officer or employee of any Target Entity as a result of the consummation of the transactions contemplated hereby$5,000;
(iiih) all Contracts that (A) contain any agreement containing covenants that restrict the ability of any Target Entity or any of its Affiliates Everlert not to compete in any line of business or that would so restrict Purchaser or its Affiliates after the Closingbusiness, or (B) grant any exclusive rights to make, sell, or distribute any Target Entity’s material products and services, or otherwise prohibit or limit in any material respect geographic area or with any person or covenants of any other person not to compete with Everlert or in any line of business of Everlert;
(i) any agreement granting or restricting the right of Everlert to use any Intellectual Property (as defined hereinafter), except for any Intellectual Property that is licensed to Everlert under any third party license generally available to the any Target Entity to develop, manufacture, market, sell, or distribute any material products or servicespublic at a cost of less than $50,000;
(ivj) all Contracts related to Indebtednessany agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(vk) all Contracts any agreement with any holder of securities of Everlert as such (A) involving payments by including, without limitation, any agreement containing an obligation to register any of such securities under any federal or to any Target Entity in excess of $100,000 during the preceding twelve (12) months or (B) that cannot be cancelled or terminated by any Target Entity on not more than ninety (90) days’ notice without penalty or premium increasestate securities laws);
(vil) all Contracts that are in respect of employment, compensation bonus, retention, severance pay, termination pay, change of control and deferred compensation, and other similar Contracts, between any Target Entity and any Employee agreement obligating Everlert to deliver services or consultant product enhancements or contractor to any Target Entitycontaining a "most favored nation" pricing clause;
(viim) all Contracts that relate any agreement relating to the acquisition by Everlert of any operating business or the capital stock of any other person;
(n) any agreement requiring the payment to any settlement agreementperson of a brokerage or sales commission or a finder's or referral fee in connection with the transactions contemplated by this Agreement (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, other than (A) releases immaterial in nature or agreements entered into with former employees or independent contractors of any Target Entity in the ordinary course of business in connection with the cessation of such employee’s or independent contractor’s employment with or services to such Target Entity, (B) settlement agreements for cash only (which has been paid or reserved for) or (C) settlement agreements entered into more than two (2) years prior to the date of this Agreement under which none of Target Entities have any continuing obligationsamounts not exceeding $5,000;
(viii) (Ap) any contract between any Target Entitylease, on the one hand, and Seller sublease or any Affiliate of Seller (other than the Target Entities), on the other hand, (B) any guarantee by Seller agreement under which Everlert is lessor or any Affiliate of Seller (other than the Target Entities) in favor of or in respect lessee of any real property or equipment or other tangible property with respect to obligations of the Target Entities or any guarantee by any Target Entity in favor of or in respect of any obligations of Seller or any Affiliate of Seller (other than the Target Entities), (C) any contract between any Target Entities, on the one hand, and any director or officer (or any Affiliate of a director or officer (other than the Target Entities)), on the other hand or (D) any contract between any Target Entity and any third party entered into for the benefit of Seller or any Affiliate of Seller (other than the Target Entities);
(ix) any Producer Contract with a Producer of any Target Entity who was responsible for placing 5% or more of the aggregate gross written premium of the Business for the year ended December 31, 2018 or any Producer Contract that is not in the form of a standard form automobile dealer agreement;
(x) any collective bargaining agreement;
(xi) any contracts or agreements material to the Target Entities pursuant to which any Target Entity (A) is licensed or otherwise permitted to use any Intellectual Property, (B) grants a license to, or otherwise permits, any Person to use any Intellectual Property owned by any Target Entity and (C) obtains any IT Systems, such as data center or hosting or maintenance of Software services;
(xii) any contract or agreement that provides for a third person to create or develop for or on behalf of the Target Entities any Intellectual Property that is material to the Target Entities;
(xiii) any contract or agreement that relates to the acquisition or disposition by any Target Entity of any business or operations, capital stock or assets of any Person or any real estate as to which there are any material ongoing obligations of such Target Entity;
(xiv) any contract or agreement relating to any material interest rate, derivatives or hedging transaction;
(xv) any investment advisory agreements or any other contracts relating to investment management, investment advisory or subadvisory services to which any Target Entity is a party;
(xvi) any third-party administration contracts with an unaffiliated third party;
(xvii) any contract that provides the counterparty thereto with any additional rights or any Target Entity with any additional obligations in the event of a ratings downgrade of such Target Entity;
(xviii) any Contract with any Material Customer or Material Vendor;
(xix) any Contract providing for capital expenditures in excess of $250,000;
(xx) any outstanding general or special powers of attorney executed by or on behalf of any Target Entity5,000; and
(xxiq) all other Contracts material 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 BusinessEverlert products which have been delivered as of the date hereof, any agreement that requires Everlert 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 Everlert to utilize substantial personnel or financial resources.
(br) As any other material agreement not made in the ordinary course of business. True and complete copies of all the date contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on the Everlert Disclosure Schedule have been made available to Managers. Each of this Agreementsuch contracts is valid, each Material Contract and Producer Contract to which any Target Entity is a party is subsisting, in full force and effect and constitutes a legal, valideffect, binding agreementupon Everlert, enforceable against such Target Entity and, and to the knowledge of SellerEverlert, each binding upon the other party thereto, parties thereto in accordance with its their terms. No Target Entity or, and Everlert is not in default under any of them, nor, to the best knowledge of SellerEverlert, is any other party to each any such Material Contract contract or Producer Contract is other agreement in material violation or breach of, or in material default underthereunder, nor has there occurred an event or does any condition exist that with the passage notice or lapse of time or giving of notice (or both) , would constitute a material default underthereunder, except, in each case, such defaults as would not, individually or permit the termination of, any such Material Contract or Producer Contract. No Material Contract contains any provision that by its own terms would result in a modification of the agreement by reason of the consummation of the transactions contemplated hereby or the Transaction Documents. Except as set forth on Section 3.13(b)(i) of the Seller Disclosure Schedule, no Target Entity has received written notice of the cancellation or termination of any Material Contract. Except as set forth on Section 3.13(b)(ii) of the Seller Disclosure Schedule, none of the Material Contracts contain any provision providing that the other party thereto may terminate, amend or alter the pricing or other terms thereof by reason of the transactions contemplated hereby or by the Transaction Documents or has a right to consent to the transaction contemplated hereby or by the Transaction Documents.
(c) Seller has made available to Purchaser true and complete copies of each Material Contract set forth on Section 3.13(a) of the Seller Disclosure Schedule, together with all material amendments and supplements thereto, and the form(s) of Producer Contracts used in the Businessaggregate, have a material adverse effect on the business of Everlert.
Appears in 1 contract
Samples: Management Agreement (Everlert Inc)
Contracts and Other Agreements. (a) Section 3.13(a) of the Seller Disclosure Schedule sets forth a true and complete list of all of the following Contracts to which a Target Entity the Company or its Subsidiaries is a party or by which any of its assets, properties or rights their respective assets is bound (each such contract of the following types, whether or not listed in Section 3.13(a) of the Seller Disclosure Schedule, a “Material Contract”) other than Reinsurance Contracts:
(i) all partnership, joint venture, shareholders’ or other similar contacts with any Person;
(ii) all Contracts with a stockholder, equity holder, director or officer of the Company or any Target Entityof its Subsidiaries, other than employment agreements or customary confidentiality agreements and invention assignment agreements entered into with Employees generally, but including any Contract that would require the payment of a cash bonus to any director, officer or employee of the Company or any Target Entity of its Subsidiaries as a result of the consummation of the transactions contemplated hereby;
(iii) all Contracts that (A) contain covenants binding upon the Company or any of its Subsidiaries that restrict the ability of any Target Entity the Company or any of its Affiliates Subsidiaries to compete in any line of business or in any geographic area in a manner that would so restrict Purchaser or is material to the Company and its Affiliates after the ClosingSubsidiaries, taken as a whole, or (B) grant any exclusive rights to make, sell, or distribute any Target Entitythe Company’s material products and services, or otherwise prohibit or limit in any material respect the right of the any Target Entity Company or its Subsidiaries to develop, manufacture, market, sell, or distribute any material products or services;
(iv) all Contracts related to Indebtednessunder which the Company or any of its Subsidiaries has advanced or loaned any funds in excess of $100,000 or has guaranteed any obligations of another Person in excess of $100,000 individually or in the aggregate;
(v) all Contracts (A) having a value per contract, or involving payments by or to any Target Entity the Company or its Subsidiaries in excess of $100,000 100,000.00 during the preceding twelve (12) months or (B) that cannot be cancelled or terminated by any Target Entity the Company or its Subsidiaries on not more than ninety (90) days’ notice without penalty or premium increase;
(vi) all Contracts that are in respect of employment, compensation bonus, retention, severance pay, termination pay, change of control and deferred compensation, and other similar Contracts, between any Target Entity the Company or its Subsidiaries and any Employee or consultant or contractor to any Target Entitythe Company or its Subsidiaries;
(vii) all Contracts that relate to any settlement agreement, other than (Aa) releases immaterial in nature or entered into with former employees or independent contractors of any Target Entity the Company in the ordinary course of business in connection with the cessation of such employee’s or independent contractor’s employment with or services to such Target Entitythe Company, (Bb) settlement agreements for cash only (which has been paid or reserved accrued for) or (Cc) settlement agreements entered into more than two (2) years prior to the date of this Agreement under which none of Target Entities the Company or Subsidiaries have any continuing obligations, liabilities, or rights (excluding releases), in each case material to the Company and the Subsidiaries taken as a whole;
(viii) (A) any contract between any Target Entitythe Company, on the one hand, and Seller or any Affiliate of Seller (other than the Target EntitiesCompany), on the other hand, (B) any guarantee by Seller or any Affiliate of Seller (other than the Target EntitiesCompany) in favor of or in respect of any obligations of the Target Entities Company or any guarantee by any Target Entity in favor of or in respect of any obligations of Seller or any Affiliate of Seller (other than the Target Entities), (C) any contract between the Company or any Target Entitiesof its Subsidiaries, on the one hand, and any director or officer (or any Affiliate of a director or officer (other than the Target EntitiesCompany)), on the other hand or (D) any contract between any Target Entity and any third party entered into for the benefit of Seller or any Affiliate of Seller (other than the Target Entities)hand;
(ix) any Producer Contract with a Producer mortgages, indentures, loan or credit agreements, security agreements and other agreements and instruments relating to the borrowing of money or extension of credit to the Company or the direct or indirect guarantee by the Company of any Target Entity who was responsible obligation for placing 5% borrowed money of any Person or more any other liability of the aggregate gross written premium Company in respect of indebtedness for borrowed money of any Person;
(x) contracts and agreements with the ten largest Producers (measured by total commission payments made to Producers with respect to the Business) of the Business Company for the year ended December 31, 2018 or any Producer Contract that is not in the form of a standard form automobile dealer agreement2015;
(xxi) any collective bargaining agreement;
(xixii) contracts and agreements with the ten largest vendors (measured by total annual payments made to vendors) of the Company for the year ended December 31, 2015;
(xiii) any contracts or agreements material to the Target Entities pursuant to which any Target Entity the Company (A) is licensed or otherwise permitted to use any Intellectual Property, Property (excluding licenses for commercially available “off-the-shelf” Software licensed to the Company for a one-time or annual fee of less than $50,000 and (B) grants a license to, licenses or otherwise permits, permits any Person to use any Intellectual Property owned by any Target Entity and (C) obtains any IT Systems, such as data center or hosting or maintenance of Software servicesthe Company;
(xiixiv) any contract or agreement that provides for a third person to create or develop for or on behalf of the Target Entities any Intellectual Property that is material to the Target Entities;
(xiii) any contract or agreement that which relates to the acquisition or disposition by any Target Entity the Company of any business or operations, capital stock or assets of any Person or any real estate as to which there are any material ongoing obligations of such Target Entitythe Company;
(xivxv) any contract or agreement relating to any material interest rate, derivatives or hedging transaction;
(xvxvi) any investment advisory agreements or any other contracts relating to investment management, investment advisory or subadvisory services to which any Target Entity the Company is a party;
(xvixvii) any third-party administration contracts with an unaffiliated third partycontracts;
(xviixviii) any contract that provides the counterparty thereto with any additional rights or any Target Entity the Company with any additional obligations in the event of a ratings downgrade of such Target Entity;
(xviii) any Contract with any Material Customer or Material Vendorthe Company;
(xix) any Contract providing for capital expenditures in excess of $250,000;
(xx) any outstanding general or special powers of attorney executed by or on behalf of any Target Entityall Company IP Agreements; and
(xxixx) all other Contracts material to the Business.
(b) As of the date of this Agreement, each Material Contract and Producer Contract to which any Target Entity the Company or its Subsidiaries is a party is in full force and effect and constitutes a legal, valid, binding agreement, enforceable against such Target Entity the Company or any Subsidiary, as applicable, and, to the knowledge of Seller, each other party thereto, in accordance with its terms. No Target Entity None of the Company, its Subsidiaries or, to the knowledge of Seller, any other party to each such Material Contract or Producer Contract contract is in material violation or breach of, or in material 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 material default under, or permit the termination of, any such Material Contract or Producer Contractcontract. No Material Contract contains any provision that which by its own terms would result in a modification of the agreement by reason of the consummation of the transactions contemplated hereby or the Transaction Documentsby this Agreement. Except as set forth on Section 3.13(b)(i) of the Seller Disclosure Schedule, no Target Entity has neither the Company nor its Subsidiaries have received written notice of the cancellation or termination of any Material Contract. Except as set forth on Section 3.13(b)(ii) of the Seller Disclosure Schedule, none of the Material Contracts contain any provision providing that the other party thereto may terminate, amend or alter the pricing or other terms thereof by reason of the transactions contemplated hereby or by the Transaction Documents or has a right to consent to the transaction contemplated hereby or by the Transaction Documentshereby.
(c) Seller has made available to Purchaser true and complete copies of each Material Contract and Company IP Agreement set forth on Section 3.13(a) of the Seller Disclosure Schedule, together with all material amendments and supplements thereto, and the form(s) of Producer Contracts used in the Business.
Appears in 1 contract
Samples: Stock Purchase Agreement (Special Diversified Opportunities Inc.)
Contracts and Other Agreements. (a) Section 3.13(a) 3.14 of the Seller Disclosure Schedule PACIFIC DISCLOSURE SCHEDULE sets forth a true correct and complete list of all of the following Contracts to which a Target Entity is a party or by which any of its assets, properties or rights is bound (each such contract of the following types, whether or not listed in Section 3.13(a) of the Seller Disclosure Schedule, a “Material Contract”) other than Reinsurance Contractscurrently effective contracts:
(i) written contracts and other agreements with or for the benefit of any current or former officer, director, stockholder or employee of Pacific or any Subsidiary or any Subsidiary involving more than $5,000, (provided in the case of a loan by Pacific or any Subsidiary to any such person, the PACIFIC DISCLOSURE SCHEDULE shall list all partnershipsuch loan arrangements, joint venturewhether or not in writing, shareholders’ involving at least $1,000) and contracts and other agreements for the payment of fees or other similar contacts with consideration to any Personentity in which Pacific or any Subsidiary has an interest;
(ii) all Contracts contracts and other agreements with a stockholder, equity holder, director any labor union or officer of association representing any Target Entity, other than employment agreements or customary confidentiality agreements and invention assignment agreements entered into with Employees generally, but including any Contract that would require the payment of a cash bonus to any director, officer or employee of Pacific or any Target Entity as a result Subsidiary or otherwise providing for any form of the consummation of the transactions contemplated herebycollective bargaining;
(iii) contracts and other agreements for the purchase or sale of materials, supplies, equipment, merchandise or services that contain an escalation, renegotiation or redetermination clause or that obligate Pacific or any Subsidiary to purchase all Contracts that 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;
(Aiv) contain covenants that restrict contracts and other agreements for the ability sale of any Target Entity of the assets or properties of Pacific or any Subsidiary other than in the ordinary course of its Affiliates business or 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;
(v) partnership or joint venture agreements;
(vi) contracts with agents or foreign representatives regarding the sales or marketing of the services or products of Pacific or any Subsidiary;
(vii) contracts or other agreements under which Pacific or any Subsidiary agrees to act as surety or guarantor for or to indemnify any party (other than required indemnification provisions in customer contracts) or to share the tax liability of any party;
(viii) contracts, options, outstanding purchase orders and other agreements for the purchase of any material asset, tangible or intangible;
(ix) contracts and other agreements with customers, suppliers or other parties for the sharing of fees, the rebating of charges or other similar arrangements other than such contracts entered into in the normal course of business;
(x) contracts and other agreements containing obligations or liabilities of any kind to holders of the securities of Pacific or of any Subsidiary as such (including, without limitation, an obligation to register any of such securities under any federal or state securities laws) and contracts obligating Pacific or any Subsidiary to issue or repurchase any securities;
(xi) contracts and other agreements containing covenants of Pacific or any Subsidiary not to compete in any line of business or that would so restrict Purchaser with any person or its Affiliates after the Closing, entity or (B) grant covenants of any exclusive rights other person or entity not to make, sell, compete with Pacific or distribute any Target Entity’s material products and services, or otherwise prohibit or limit Subsidiary in any material respect the right line of the any Target Entity to develop, manufacture, market, sell, or distribute any material products or services;
(iv) all Contracts related to Indebtedness;
(v) all Contracts (A) involving payments by or to any Target Entity in excess of $100,000 during the preceding twelve (12) months or (B) that cannot be cancelled or terminated by any Target Entity on not more than ninety (90) days’ notice without penalty or premium increase;
(vi) all Contracts that are in respect of employment, compensation bonus, retention, severance pay, termination pay, change of control and deferred compensation, and other similar Contracts, between any Target Entity and any Employee or consultant or contractor to any Target Entity;
(vii) all Contracts that relate to any settlement agreement, other than (A) releases immaterial in nature or entered into with former employees or independent contractors of any Target Entity in the ordinary course of business in connection with the cessation of such employee’s or independent contractor’s employment with or services to such Target Entity, (B) settlement agreements for cash only (which has been paid or reserved for) or (C) settlement agreements entered into more than two (2) years prior to the date of this Agreement under which none of Target Entities have any continuing obligations;
(viii) (A) any contract between any Target Entity, on the one hand, and Seller or any Affiliate of Seller (other than the Target Entities), on the other hand, (B) any guarantee by Seller or any Affiliate of Seller (other than the Target Entities) in favor of or in respect of any obligations of the Target Entities or any guarantee by any Target Entity in favor of or in respect of any obligations of Seller or any Affiliate of Seller (other than the Target Entities), (C) any contract between any Target Entities, on the one hand, and any director or officer (or any Affiliate of a director or officer (other than the Target Entities)), on the other hand or (D) any contract between any Target Entity and any third party entered into for the benefit of Seller or any Affiliate of Seller (other than the Target Entities);
(ix) any Producer Contract with a Producer of any Target Entity who was responsible for placing 5% or more of the aggregate gross written premium of the Business for the year ended December 31, 2018 or any Producer Contract that is not in the form of a standard form automobile dealer agreement;
(x) any collective bargaining agreement;
(xi) any contracts or agreements material to the Target Entities pursuant to which any Target Entity (A) is licensed or otherwise permitted to use any Intellectual Property, (B) grants a license to, or otherwise permits, any Person to use any Intellectual Property owned by any Target Entity and (C) obtains any IT Systems, such as data center or hosting or maintenance of Software servicesbusiness;
(xii) any contract or agreement that provides for a third person to create or develop for or on behalf of the Target Entities any Intellectual Property that is material contracts and other agreements relating to the Target Entitiesacquisition by Pacific or any Subsidiary of any operating business or the capital stock of any other person or entity;
(xiii) contracts and other agreements requiring the payment to any contract party of a brokerage or agreement that relates to the acquisition sales commission or disposition by any Target Entity of any business a finder's or operations, capital stock or assets of any Person or any real estate as to which there are any material ongoing obligations of such Target Entityreferral fee;
(xiv) any contract or agreement 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 material interest rate, derivatives or hedging transactionsuch liability;
(xv) any investment advisory agreement or series of related agreements requiring aggregate payments by or to Pacific or any other contracts relating to investment management, investment advisory or subadvisory services to which any Target Entity is a partySubsidiary of more than $5,000;
(xvi) contracts under which Pacific or any thirdSubsidiary will acquire or has acquired ownership of, or license to, intangible property, including software other than commercially available end-party administration contracts with an unaffiliated third party;user licenses; and
(xvii) any other material contract that provides the counterparty thereto with any additional rights or any Target Entity with any additional obligations other agreement whether or not made in the event ordinary course of a ratings downgrade of such Target Entity;
(xviii) any Contract with any Material Customer business. There have been delivered or Material Vendor;
(xix) any Contract providing for capital expenditures in excess of $250,000;
(xx) any outstanding general or special powers of attorney executed by or on behalf of any Target Entity; and
(xxi) all other Contracts material to the Business.
(b) As of the date of this Agreement, each Material Contract and Producer Contract to which any Target Entity is a party is in full force and effect and constitutes a legal, valid, binding agreement, enforceable against such Target Entity and, to the knowledge of Seller, each other party thereto, in accordance with its terms. No Target Entity or, to the knowledge of Seller, any other party to each such Material Contract or Producer Contract is in material violation or breach of, or in material 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 material default under, or permit the termination of, any such Material Contract or Producer Contract. No Material Contract contains any provision that by its own terms would result in a modification of the agreement by reason of the consummation of the transactions contemplated hereby or the Transaction Documents. Except as set forth on Section 3.13(b)(i) of the Seller Disclosure Schedule, no Target Entity has received written notice of the cancellation or termination of any Material Contract. Except as set forth on Section 3.13(b)(ii) of the Seller Disclosure Schedule, none of the Material Contracts contain any provision providing that the other party thereto may terminate, amend or alter the pricing or other terms thereof by reason of the transactions contemplated hereby or by the Transaction Documents or has a right to consent to the transaction contemplated hereby or by the Transaction Documents.
(c) Seller has made available to Purchaser Procept true and complete copies of each Material Contract all of the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on in Section 3.13(a) 3.14 of the Seller Disclosure SchedulePACIFIC DISCLOSURE SCHEDULE. All of such contracts and other agreements are valid, together with all material amendments subsisting, in full force and supplements theretoeffect, binding upon Pacific or a Subsidiary (as the case may be), and to the form(s) best knowledge of Producer Contracts used Pacific, binding upon the other parties thereto in accordance with their terms. Other than defaults which would not, either singly or in the Businessaggregate, have a Pacific Material Adverse Effect, none of Pacific or any Subsidiary is not in default under any of such scheduled contracts, nor, to the best knowledge of Pacific, 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 would constitute a default thereunder.
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