Contracts. (i) Section 3.15(a) of the Radiancy Disclosure Schedule sets forth an accurate list of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”): (i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000; (ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000; (iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000); (iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business); (v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees; (vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person; (vii) any agreement relating to indebtedness for borrowed money or extensions of credit; (viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person; (ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business; (x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and (xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. (ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity. (iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contract.
Appears in 2 contracts
Sources: Merger Agreement (Ds Healthcare Group, Inc.), Merger Agreement (Photomedex Inc)
Contracts. (ia) Section 3.15(aSchedule 4.19(a) of the Radiancy Seller Disclosure Schedule sets forth an accurate list Schedules lists, as of the Agreement Date, and Seller has made available to Buyer correct and complete copies of, the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business Seller is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):party:
(i) each Contract (other than purchase orders or group of related Contracts with the same Person for Inventory) that involves the performance of services or the delivery of goods any goods, equipment or materials by any member Seller (other than the Contracts or group of related Contracts with the Radiancy Group engaged same Person entered into by Seller in the Radiancy Ordinary Course of Business involving aggregate payments to or by Seller of an amount or value in excess of less than $25,00025,000 during any 12-month period);
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000collective bargaining agreement;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party which provides for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity payment of any member of the Radiancy Groupseverance benefits, including, but not limited to, retention bonuses or sale bonuses to any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy GroupBusiness Employee, other than indemnification provided to customers or vendors bonuses paid in the Ordinary Course of Business;
(xiv) agreements between Seller, on the one hand, and Parent or any other of its Affiliates, on the other;
(v) each Contract or group of related Contracts with the same Person relating to the lease of tangible assets, personal property or equipment, specifying in each case whether Seller is the lessee or lessor (other than Contracts or group of related Contracts with the same Person in the Ordinary Course of Business involving aggregate payments to or by Seller of less than $25,000 during any 12-month period);
(vi) each Contract relating to the license or use of Intellectual Property, specifying in each case whether the license is to or from Seller, other than licenses, terms of service agreements and similar Contracts for “shrinkwrap,” “clickwrap,” or other similar “off-the-shelf” software that is available on a retail basis;
(vii) each employment or consulting Contract (other than offer letters on Seller’s standard form) which on its terms provides for annual compensation in excess of $100,000;
(viii) each Contract with an Authority;
(ix) each Contract involving capital expenditures in excess of $5,000 or the sale of any Business Employeecapital asset;
(x) each Contract relating to the borrowing of money or to mortgaging, pledging or otherwise placing an Encumbrance on any consultant or contractor of the Radiancy Business, other than at-Purchased Assets or the Business that will arrangements that do not include severance or “change of control” provisions; andsurvive the Closing;
(xi) each amendment, supplementContract relating to the lending of money (other than advances of expenses to employees in the Ordinary Course of Business, and modification (whether oral player markers issued in the Ordinary Course of Business and reflected in the Business’s books and records) or written) in respect to taking any mortgage, pledge or otherwise placing an Encumbrance on any assets of any Person;
(xii) each Contract relating to a partnership, joint venture or joint development, marketing, sales or similar arrangement;
(xiii) each Contract containing exclusivity, noncompetition, nonsolicitation or other provisions that prohibit, restrict or limit to any extent Seller’s right to (1) freely engage in any business anywhere in the world, or (2) solicit or engage the services of any Person;
(xiv) each Contract that grants to any Person the right to occupy any portion of the foregoingFacilities; and
(xv) each Assigned Contract which requires Consent to an assignment of the Contract or to a sale of all or substantially all of Seller’s or the Business’s assets or operations.
(iib) Except as set forth in Section 3.15(bSchedule 4.19(b) of the Radiancy Seller Disclosure ScheduleSchedules, as (i) each of the date hereofAssigned Contracts is valid and binding on Seller and, all to the Knowledge of the Radiancy Business Contracts are Seller, each other party thereto, and is in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and effect; (ii) no Person has given written notice or alleged in writing to Seller (or to the Knowledge of Seller, otherwise alleged) that Seller or any other party to any of the Assigned Contracts is subject to general principles of equity.
in Breach thereof; (iii) Except as set forth in Section 3.15(c) to the Knowledge of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, Seller no event has occurred which with notice occurred, and no circumstance exists that was caused by Seller or Parent, and to the passage Knowledge of time Seller no other circumstance exists, that has resulted or both would constitute reasonably be expected to result in a breach Breach of any of the Assigned Contracts by Seller or by any other party thereto; and (iv) no party to any of the Assigned Contracts has in writing terminated or purported to terminate or requested any material respect modification or waiver thereof. There are no Contracts other than the Assigned Contracts and the Leases which are necessary for the operation or for the continued operation by Buyer of or default under) any the Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract as currently conducted in breach in any material respect the Ordinary Course of or default under such Business ContractBusiness.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Nevada Gold & Casinos Inc)
Contracts. (ia) Section 3.15(aCompany Disclosure Schedule 4.13(a) lists, as of the Radiancy Disclosure Schedule sets forth an accurate list date of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound this Agreement, each Contract that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):a type described below:
(i) each any Contract to which the Company or any of the Company Subsidiaries is a party relating to indebtedness for borrowed money (other than purchase orders for Inventoryintercompany indebtedness) that involves performance of services or delivery of goods capital leases (in each case, whether incurred, assumed, guaranteed or materials secured by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value asset) in excess of $25,000250,000;
(ii) each any Contract with, respectively, the thirty (other than purchase orders for Inventory30) that involves performance largest customers and thirty 30 largest suppliers (measured by dollar volume of services purchases or delivery of goods or materials to any member sales, respectively) of the Radiancy Group engaged in Company and the Radiancy Business of an amount or value in excess of $25,000Company Subsidiaries during the fiscal year ended March 31, 2013;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other any Contract affecting to which the ownership of, leasing of, title to, use of, Company or any leasehold of the Company Subsidiaries is a party granting a right of first refusal, right of first offer or other interest in, similar preferential right to purchase or acquire any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)the Company’s or any of the Company Subsidiaries’ capital stock or assets;
(iv) each any Contract that, to the Company’s Knowledge, (i) purports to limit either the type of business in respect which the Company or any of Intellectual Property the Company Subsidiaries (or, after the Effective Time, Parent or any of its Subsidiaries) may engage or the manner or locations in which any of them may so engage in any business, (ii) requires the disposition of any assets or line of business of the Company or any of its Subsidiaries (or, after the Effective Time, Parent or its Subsidiaries), (iii) grants “most favored nation” status that, following the Merger, would apply to Parent and its Subsidiaries, including the Company and any of the Company Subsidiaries or (iv) prohibits or limits the right of the Company or any of the Company Subsidiaries to make, sell or distribute any products or services (other than licenses customary employee non-solicitation provisions entered into in the Ordinary Course), except, in each case in the foregoing clauses (i) through (iv), for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software any such Contract that has is not been modified or customized by material to the Company and the Company Subsidiaries taken as a third Party for the Radiancy Business)whole;
(v) each collective bargaining agreement and other any Contract to which the Company or any of the Company Subsidiaries is a party with respect to any labor union partnership or other employee representative of joint venture in which the Company or any Company Subsidiary has an ownership interest (other than a group of employeesContract solely between the Company or a Company Subsidiary, on the one hand, and one or more Company Subsidiaries, on the other hand);
(vi) each joint venture, partnership, and other any Contract (however named) involving a sharing of profits, losses, costs, pursuant to which the Company or liabilities by any member of the Radiancy Group with any other PersonCompany Subsidiaries has an option or right to purchase the assets or securities of another Person (not including purchases of raw materials, equipment and inventory in the Ordinary Course) that would entail a payment in excess of $2,500,000 in the aggregate;
(vii) any agreement relating Contract that obligates the Company or any of the Company Subsidiaries to indebtedness for borrowed money make any earn-out payments of a material amount based on future performance of an acquired business or extensions of creditassets;
(viii) each any Contract to which the Company or any of the Company Subsidiaries is a party containing covenants that restrict a standstill or similar agreement pursuant to which one party has agreed not to acquire the business activity assets or securities of the other party or any of its Affiliates, or a put, call or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any member Person or assets that have a fair market value or purchase price of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Personmore than $1,000,000;
(ix) any agreement providing for indemnification by Contract between the Company and its Subsidiaries, on the one hand, and any member director or officer of the Radiancy GroupCompany or any Person beneficially owning five percent (5%) or more of the outstanding Shares, on the other than indemnification provided to customers or vendors in the Ordinary Course of Businesshand, excluding Benefit Plans;
(x) any employment or consulting Contract with any Business Employee, providing for indemnification by the Company or any consultant or contractor of the Radiancy BusinessCompany Subsidiaries of any Person, other than at-will arrangements except for any such Contract that do is (x) not include severance material to the Company or “change any of control” provisionsthe Company Subsidiaries as a whole or (y) entered into in the Ordinary Course; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of Contract for the license of, or default under containing any covenant not to ▇▇▇ or waiver or release under, any Intellectual Property granted to or from the Company (and to PHMD’s Knowledge, no event excluding commercial off-the-shelf for shrink wrap software that has occurred which with notice not been materially modified or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contractcustomized).
Appears in 2 contracts
Sources: Merger Agreement (Consolidated Graphics Inc /Tx/), Merger Agreement (RR Donnelley & Sons Co)
Contracts. (i) Except for Contracts filed as exhibits to the Company SEC Documents, Section 3.15(a) 3.15 of the Radiancy Company Disclosure Schedule Letter sets forth an accurate forth, as of the date of this Agreement, a true and complete list of all of the following Contracts to which the Company or any member Company Subsidiary is a party:
(a) material Contracts not made in the ordinary course of business;
(b) license agreements or royalty agreements, whether the Company or any Company Subsidiary is the licensor or licensee thereunder (excluding licenses that are commonly available on standard commercial terms, such as software "shrink-wrap" licenses);
(c) non-disclosure agreements (whether the Company or any Company Subsidiary is the beneficiary or the obligated party thereunder);
(d) Contracts or commitments (including groups of related Contracts or commitments) involving future expenditures or liabilities, actual or potential, in excess of $50,000 after the date hereof or otherwise material to the business of the Radiancy Group engaged Company and the Company Subsidiaries, taken as a whole;
(e) Contracts or commitments relating to commission arrangements with others that are material to the business of the Company and the Company Subsidiaries, taken as a whole;
(f) employment contracts, consulting contracts, severance agreements, "stay-bonus" agreements and similar arrangements, including Contracts (A) to employ or terminate executive officers or other personnel and other contracts with present or former officers or directors of the Company or any Company Subsidiary or (B) that will result in the Radiancy Business is a Party payment by, or by which the creation of any member liability of the Radiancy Group is bound that is primarily used inCompany, any Company Subsidiary, Parent or Sub to pay any severance, termination, "golden parachute," or other similar payments to any present or former personnel following termination of employment or otherwise as a result of the consummation of the Transactions;
(g) Contracts providing for indemnification by the Company or any Company Subsidiary with respect to material liabilities of the business of the Company and the Company Subsidiaries, taken as a whole;
(h) promissory notes, loans, agreements, indentures, evidences of indebtedness, letters of credit, guarantees, or otherwise necessary forother instruments relating to an obligation for borrowed money, whether the operation of Company or any Company Subsidiary shall be the Radiancy Business (collectivelyborrower, the “Radiancy Business Contracts”):lender or guarantor thereunder;
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by Contracts containing covenants limiting in any member material respect the ability of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, Company or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group Company Subsidiary to engage in any line of business or to compete with any Personperson that relates directly or indirectly to the business of the Company and the Company Subsidiaries;
(ixj) any agreement providing for indemnification by Contract with the federal, state or local government or any member of the Radiancy Group, other than indemnification provided to customers agency or vendors in the Ordinary Course of Businessdepartment thereof;
(xk) any employment or consulting Contract with any Business Employeeofficer, director, holder of more than 5% of the outstanding shares of Company Common Stock or any consultant person formed for the purpose of racing in a series sanctioned by the Company or contractor any Company Subsidiary (such persons, collectively, the "Teams");
(l) leases of real or personal property (including groups of related leases) involving annual payments of more than $50,000;
(m) Contracts or commitments regarding the Radiancy Business, other than at-will arrangements that do not include severance promotion of racing events for the 2003 racing season and any later seasons;
(n) Contracts or “change of control” provisionscommitments concerning a partnership or joint venture;
(o) Contracts or commitments related to sponsorships for the 2003 racing season and any later seasons; and
(xip) each amendment, supplement, and modification (whether oral any other Contract or written) in respect series of any related Contracts that are material to the business of the foregoing.
(ii) Except Company and the Company Subsidiaries, taken as set forth in Section 3.15(b) of the Radiancy Disclosure Schedulea whole, as it is currently conducted. True and complete copies of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth listed in Section 3.15(c) 3.15 of the Radiancy Company Disclosure ScheduleLetter, as including all amendments and supplements thereto, have been made available to Parent, Sub or their Representatives. Neither the Company nor any Company Subsidiary has any oral Contracts. Neither the Company nor any Company Subsidiary is in material violation of or material default under any Contract listed in Section 3.15 of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business ContractCompany Disclosure Letter.
Appears in 2 contracts
Sources: Merger Agreement (Championship Auto Racing Teams Inc), Merger Agreement (Championship Auto Racing Teams Inc)
Contracts. (i) Set forth in Section 3.15(a) 4.10 of the Radiancy Company Disclosure Schedule sets forth an accurate is a list of the following all Contracts to which the Company or any member of the Radiancy Group engaged in the Radiancy Business Company Subsidiary is a Party party or by which the Company or any member of the Radiancy Group Company Subsidiary is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):bound:
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedulewhich, as of the date hereof, all is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the Radiancy Business Contracts are in full force and effect and are enforceable in accordance SEC);
(ii) with their terms except respect to the extent that such enforceability (i) may be limited by bankruptcyany joint venture or partnership arrangements that are material to the Company and the Company Subsidiaries, insolvencytaken as a whole, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles the purchase of equity.any Equity Interest in any other entity;
(iii) Except as set forth pursuant to which any indebtedness for borrowed money of the Company or any Company Subsidiary in an aggregate principal amount in excess of $1,000,000 is outstanding or may be incurred, other than any Contract between or among the Company and/or wholly-owned Company Subsidiaries;
(iv) relating to a guarantee by the Company or any Company Subsidiary of indebtedness of any Third Party in excess of $1,000,000;
(v) relating to any pending acquisition or disposition by the Company or any of the Company Subsidiaries of properties or assets, except for acquisitions and dispositions of properties, assets and inventory in the ordinary course of business;
(vi) which contains covenants limiting the ability of the Company or any Company Subsidiary to engage in any of its principal lines of business, or to compete with any Person or operate at any geographic location with respect to any of its principal lines of business, except for any Real Property Leases;
(vii) providing any long-term discount commitments by the Company or any Company Subsidiary in excess of 30% off of the Company’s or any Company Subsidiary’s customary body shop pricing, other than those Contracts that are terminable by the Company or any Company Subsidiary on no more than sixty (60) days notice without liability or financial obligation;
(viii) any employment or consulting agreement, contract or commitment with any officer or director level employee or member of the Company’s board of directors or any other employee who is one of the twenty (20) most highly compensated employees, including base salary and bonuses, other than those Contracts that are terminable by the Company or any Company Subsidiary on no more than sixty (60) days notice without liability or financial obligation or benefits generally available to employees of the Company; or
(ix) any Contract for capital expenditures in excess of $500,000 individually or $3,000,000 in the aggregate. Each Contract of the type described in this Section 4.10.1(excluding any Real Property Leases, which are addressed exclusively in Section 3.15(c4.16) of the Radiancy Disclosure Schedule, is referred to herein as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business “Company Contract.”
Appears in 2 contracts
Sources: Agreement and Plan of Merger (LKQ Corp), Merger Agreement (Keystone Automotive Industries Inc)
Contracts. (A) Subsections (i) Section 3.15(athrough (vi) of the Radiancy Disclosure Schedule sets forth an PART A OF SCHEDULE 3.1(O) each contain a complete and accurate list listing of the following Contracts contracts, agreements, commitments, leases, licenses, arrangements, instruments and obligations, whether written or oral (and, if oral, a complete and accurate summary thereof), to which the Company or any member Subsidiary of the Radiancy Group engaged in the Radiancy Business Company is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):party:
(i) each Contract (other than purchase orders for Inventory) that involves performance of services contract, agreement, commitment, lease, license, arrangement, instrument and/or obligation which is reasonably likely to involve aggregate annual payments by or delivery of goods to the Company or materials by any member Subsidiary of the Radiancy Group engaged in the Radiancy Business Company of an amount or value in excess of more than $25,00050,000;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member all collective bargaining agreements and Plans of the Radiancy Group engaged in Company maintained for or providing benefits to employees of, or independent contractors or other agents for, the Radiancy Business Company or any Subsidiary of an amount or value in excess of $25,000the Company;
(iii) each Leaseall contracts and agreements relating to (A) any indebtedness, rental notes payable (including notes payable in connection with acquisitions), accrued interest payable or occupancy agreementother obligations for borrowed money, licensewhether current, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use ofshort-term, or long-term, secured or unsecured, of the Company or any leasehold of its Subsidiaries, (B) any purchase money indebtedness or earn-out or similar obligation in respect of purchases of property or assets by the Company or any of its Subsidiaries, (C) any lease obligations of the Company or any of its Subsidiaries under leases which are capital leases in accordance with GAAP, (D) any financing of the Company or any of its Subsidiaries effected through "special purpose entities" or synthetic leases or project financing, (E) any obligations of the Company or any of its Subsidiaries in respect of banker's acceptances or letters of credit (other than stand-by letters of credit in support of ordinary course trade payables), (F) any obligation or liability of the Company or any of its Subsidiaries with respect to interest inrate swaps, collars, caps, currency derivatives and similar hedging obligations or (G) any personal property guaranty of any of the foregoing (except personal property leases the liabilities and installment and conditional sales agreements having aggregate payments obligations referred to in (A) through (G) above, "COMPANY INDEBTEDNESS") or any Liens upon any properties or assets of less than $50,000)the Company or any Subsidiary of the Company as security for Company Indebtedness;
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap all leases or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business)subleases relating to real property;
(v) each collective bargaining agreement all contracts and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants agreements that restrict the business activity of any member ability of the Radiancy GroupCompany and/or any Subsidiary or affiliate of, including, but not limited or successor to, any exclusivity covenantsthe Company, or limit or, to the freedom of any member knowledge of the Radiancy Group Company, any executive officer of the Company or any Subsidiary thereof, to engage compete in any line of business or to compete with any Person;
(ix) Person or in any agreement providing for indemnification by geographic area or during any member period of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employeetime, or grant any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisionsexclusive license to Company Owned IP; and
(xivi) each amendmentall other contracts, supplementagreements, and modification (commitments, leases, licenses, arrangements, instruments and/or obligations, whether oral or written) not made in respect the ordinary course of business, which are material to the Company or any Subsidiary of the foregoing.
(ii) Except as set forth Company in Section 3.15(b) the conduct of the Radiancy Disclosure Scheduletheir respective businesses, as of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage termination or cancellation of time which would have or both would constitute reasonably be expected to have a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business ContractCompany Material Adverse Effect.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Advanced Technology Industries Inc), Merger Agreement (Advanced Technology Industries Inc)
Contracts. (ia) Section 3.15(a) of the Radiancy Disclosure Disclosure. Schedule 3.11 sets forth an a complete and accurate list of all of the Contracts of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):categories:
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged Contracts not made in the Radiancy Business ordinary course of an amount or value in excess of $25,000business;
(ii) each Contract License agreements or royalty agreements, whether RedChip is the licensor or licensee thereunder (other than purchase orders for Inventory) excluding licenses that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000are commonly available on standard commercial terms, such as software "shrink-wrap" licenses);
(iii) each Lease, rental Confidentiality and non-disclosure agreements (whether RedChip is the beneficiary or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000obligated party thereunder);
(iv) each Contract Contracts or commitments involving future expenditures or Liabilities, actual or potential, in respect excess of Intellectual Property (other than licenses for shrinkwrap, clickwrap $50,000 after the date hereof or other similar commercially available off-the-shelf software that has not been modified otherwise material to the RedChip Business or customized by a third Party for the Radiancy Business)Assets;
(v) each collective bargaining agreement and other Contract Contracts or commitments relating to or commission arrangements with any labor union or other employee representative of a group of employeesothers that are material to the RedChip Business;
(vi) each joint ventureEmployment contracts, partnershipconsulting contracts, severance agreements, "stay-bonus" agreements and similar arrangements, including Contracts (A) to employ or terminate executive officers or other personnel and other Contract contracts with present or former officers or directors of RedChip or (however namedB) involving a sharing of profits, losses, coststhat will result in the payment by, or liabilities by the creation of any member Liability of RedChip or FRT to pay any severance, termination, "golden parachute," or other similar payments to any present or former personnel following termination of employment or otherwise as a result of the Radiancy Group with any other Personconsummation of the transactions contemplated by this Agreement;
(vii) any agreement relating to indebtedness for borrowed money or extensions of creditIndemnification agreements;
(viii) each Contract Promissory notes, loans, agreements, indentures, evidences of indebtedness, letters of credit, guarantees, or other instruments relating to an obligation to pay money, whether RedChip shall be the borrower, lender or guarantor thereunder ;
(ix) Contracts containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit limiting the freedom of RedChip, or any member RedChip Employee or Affiliate of the Radiancy Group RedChip, to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of Person that relates directly or indirectly to the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of RedChip Business;
(x) any employment or consulting Any Contract with any Business Employeethe federal, state or local government or any consultant agency or contractor department thereof;
(xi) Any Contract or other arrangement with a Related Party;
(xii) Leases of the Radiancy Business, other real or personal property involving annual payments of more than at-will arrangements that do not include severance or “change of control” provisions$50,000; and
(xixiii) each amendmentAny other Contract under which the consequences of a default or termination would reasonably be expected to have a RedChip Material Adverse Effect, supplement, individually or in the aggregate. Complete and modification (whether oral or written) in respect accurate copies of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are in full force listed on Schedule 3.11, including all amendments and effect and are enforceable in accordance with their terms except supplements thereto, have been made available to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles FRT. RedChip has included as part of equity.
(iii) Except as set forth in Section 3.15(c) Schedule 3.11 a brief summary of the Radiancy Disclosure Schedule, as material terms of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business each oral Contract.
Appears in 2 contracts
Sources: Merger Agreement (Freerealtime Com Inc), Merger Agreement (Freerealtime Com Inc)
Contracts. (ia) Section 3.15(aPart 2.5(a) of the Radiancy Disclosure Schedule sets forth an accurate list identifies each of the following Seller Contracts (each Seller Contract required to which any member be disclosed on Part 2.5(a) of the Radiancy Group engaged in the Radiancy Business Disclosure Schedule is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, referred to collectively as the “Radiancy Business Material Contracts”):
(i) each Seller Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by with any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000Governmental Body;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services partnership, joint venture or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000similar Seller Contract;
(iii) each Lease, rental Seller Contract pursuant to which any Person has the right to (A) distribute or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, otherwise resell any Transferred Product or (B) sublicense any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)Seller IP;
(iv) each Seller Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software with a customer that has not been modified outstanding accounts receivables in excess of $100,000 in the aggregate or customized that contemplates or involves the performance of services by Seller having a third Party for value in excess of $100,000 in the Radiancy Business)aggregate;
(v) each collective bargaining agreement and other Seller Contract pursuant to which Seller leases or with otherwise occupies or uses any labor union or other employee representative real property in the conduct of a group of employeesthe Business (the “Leased Real Property”);
(vi) each joint venture, partnership, and other Seller Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of that prohibits Seller from freely engaging in the Radiancy Group with any other PersonBusiness anywhere in the world;
(vii) each Seller Contract providing for the mortgaging, pledging or otherwise placing an Encumbrance on any agreement relating to indebtedness for borrowed money or extensions of credit;Transferred Asset
(viii) each material Seller Contract containing covenants that restrict providing for any license of or other grant of rights in any Seller IP to any third party, other than Contracts providing for a license or other grant of rights with respect to the business activity of any member commercial sale or license of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any PersonTransferred Products;
(ix) any agreement each material Seller Contract providing for indemnification by any member license of the Radiancy Group, or other grant of rights in any Business IP to Seller (other than indemnification provided any license or other grant of rights to customers Seller related to the LEA Software Assets, which are not deemed to be Material Contracts and to which no representation or vendors in the Ordinary Course of Businesswarranty is made);
(x) any employment or consulting each Seller Contract with any Business Employeethat involves the sharing of profits with, or the payment of royalties to, any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; andthird party;
(xi) each amendmentSeller Contract pursuant to which a third party has been, supplementor may be, and modification granted rights to access, possess or use software source code that is Seller IP, including, without limitation, any related source code escrow agreements;
(whether oral xii) each Seller Contract pursuant to which Seller has granted a third party “most favorable” pricing or writtenother terms with respect to any Seller IP or Transferred Products; and
(xiii) in each Seller Contract that grants to any Person any exclusive rights under any Seller IP or with respect to any Transferred Product, or any rights of first refusal, rights of first negotiation or similar rights, or an option for any of the foregoing.
(iib) Except as set forth in Section 3.15(b) With respect to each of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability Material Contracts: (i) may be limited by bankruptcySeller has not materially violated or breached any such Contract and, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereofSeller’s Knowledge, no Radiancy Group member is in breach such Contract has been breached in any material respect or cancelled by any other party thereto; (ii) no event has occurred, and no circumstance or condition exists, that might (with or without notice or lapse of time) result in a material violation or default breach by Seller of any of any such Contract; (iii) Seller has not received any written notice regarding any violation or reach of any such Contract; (iv) Seller has not waived any material right under any such Contract; and (v) such Contract is valid, binding and enforceable against Seller and, to PHMDSeller’s Knowledge, no event the other parties thereto (subject to the Enforceability Exception (as defined in Section 2.12)). Seller has occurred which with notice or the passage delivered to Purchaser accurate and complete copies of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contractall Transferred Contracts.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Accelrys, Inc.), Asset Purchase Agreement (Symyx Technologies Inc)
Contracts. (ia) Section 3.15(a) 3.15 of the Radiancy Company Disclosure Schedule sets forth an accurate list Letter lists each of the following types of Contracts to which Company or any member of the Radiancy Group engaged in the Radiancy Business its Subsidiaries is a Party party or by which any member of their respective properties or assets is bound as of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):date hereof:
(i) each any Contract (other than purchase orders for Inventorythat would be required to be filed by Company as a “material contract” pursuant to Item 601(b)(10) that involves performance of services Regulation S-K under the Securities Act or delivery of goods or materials disclosed by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000Company on a Current Report on Form 8-K;
(ii) each any Contract that contains any noncompetition or exclusive dealing agreements or other agreement or obligation that purports to materially limit or restrict in any respect the ability of Company or any of its Subsidiaries (or, following the consummation of the transactions contemplated by this Agreement, would limit the ability of Purchaser or any of their Subsidiaries, including Surviving Corporation) to compete in any line of business that is material to Company or Purchaser or with any Person or in any geographic area (other than purchase orders for Inventoryas may be required by Law or any Governmental Entity) that involves performance or which grants any right of services first refusal, right of first offer or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000similar right;
(iii) each Leaseany Contract for, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title with respect to, use ofor that contemplates, a possible merger, consolidation, reorganization, recapitalization or other business combination, or asset sale or sale of equity securities not in the ordinary course of business consistent with past practice, with respect to it or any leasehold of its Subsidiaries or any Contract which relates to a merger, consolidation, reorganization, recapitalization or other interest inbusiness combination, any personal property or asset sale or sale of equity securities and which contains representations, covenants, indemnities or other obligations (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)including indemnification, “earn-out” or other contingent obligations) that are still in effect;
(iv) each any Contract in respect relating to the borrowing of Intellectual Property money by it or any its Subsidiaries or the guarantee by it or any of its Subsidiaries of any such obligation of a third party (other than licenses deposit liabilities and FHLB borrowings, Contracts pertaining to fully-secured repurchase agreements and Contracts relating to endorsements for shrinkwrappayment, clickwrap or guarantees and letters of credit made in the ordinary course of business consistent with past practice), including any sale and leaseback transactions, capitalized leases and other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business)financing transactions;
(v) each collective bargaining agreement any Contract that involves expenditures or receipts of it or any of its Subsidiaries in excess of $1,000,000 per year (other than pursuant to Loans (as defined in Section 3.25) originated or purchased by Company and other Contract to or its Subsidiaries in the ordinary course of business consistent with any labor union or other employee representative of a group of employeespast practice);
(vi) each joint venture, partnership, and other any Contract (however namedother than a Company Plan) involving a sharing with respect to the employment or compensation of profits, losses, costs, any officers or liabilities by any member of the Radiancy Group with any other Persondirectors;
(vii) any agreement relating Contract containing a “most favored nation” clause or other similar term providing preferential pricing or treatment to indebtedness for borrowed money a party (other than Company or extensions of credit;its Subsidiaries) that is material to the Company or its Subsidiaries; and
(viii) each any Contract containing covenants that restrict relating to a joint venture, partnership, limited liability company agreement or other similar agreement or arrangement, or relating to the business activity formation, creation or operation, management or control of any member partnership or joint venture, in each case, with any third parties, or any Contract which limits payments of dividends. Each Contract of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage type described in any line of business or to compete with any Person;
clauses (i) through (ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided is referred to customers or vendors in the Ordinary Course of Business;herein as a “Company Material Contract.”
(xb) (i) Each Company Material Contract is valid and binding on Company and any employment or consulting Contract with any Business Employeeof its Subsidiaries to the extent such Subsidiary is a party thereto, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplementas applicable, and modification (whether oral or written) in respect to the knowledge of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure ScheduleCompany, as of the date hereofeach other party thereto, all of the Radiancy Business Contracts are and is in full force and effect and are enforceable in accordance with their terms its terms, except to the extent that such validity and enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganizationmoratorium, moratorium reorganization or other similar laws relating to Laws affecting the enforcement of creditors’ rights generallygenerally or by general principles of equity or by principles of public policy and except where the failure to be valid, binding, enforceable and in full force and effect, individually or in the aggregate, has not had a Company Material Adverse Effect; and (ii) there is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (any Company Material Contract by Company or any of its Subsidiaries or, to the knowledge of Company, any other party thereto, and to PHMD’s Knowledge, no event or condition has occurred which with that constitutes, or, after notice or the passage lapse of time or both both, would constitute constitute, a breach in default on the part of Company or any material respect of or default under) any Business Contract norits Subsidiaries or, to PHMD’s Knowledgethe knowledge of Company, is any other Party to party thereto under any such Business Contract Company Material Contract, nor has Company or any of its Subsidiaries received any written notice of any such default, event or condition, or of any termination or non-renewal of any Company Material Contract, except where any such default, event or condition, or any such termination or non-renewal, individually or in breach in the aggregate, has not had a Company Material Adverse Effect. Company has made available to Purchaser true and complete copies of all Company Material Contracts, including any material respect of or default under such Business Contractamendments thereto.
Appears in 2 contracts
Sources: Merger Agreement (Hancock Holding Co), Merger Agreement (Whitney Holding Corp)
Contracts. (ia) Section 3.15(a3.14(a) of the Radiancy Disclosure Schedule Letter sets forth an accurate list of the following Contracts to which any member Seller Company or other direct or indirect Subsidiary of the Radiancy Group Seller Companies engaged in the Radiancy Business is a Party party or by which any member Seller Company or other such direct or indirect Subsidiary of the Radiancy Group Seller Companies is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member Seller Company or other direct or indirect Subsidiary of the Radiancy Group Seller Companies engaged in the Radiancy Business of an amount or value in excess of $25,000;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member Seller Company or other direct or indirect Subsidiary of the Radiancy Group Seller Companies engaged in the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,00025,000);
(iv) each Contract in respect of Business Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group Seller Company with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member Seller Company or other direct or indirect Subsidiary of the Radiancy GroupSeller Companies engaged in the Business, including, but not limited to, any exclusivity covenants, or limit the freedom of any member Seller Company or other direct or indirect Subsidiary of the Radiancy Group Seller Companies engaged in the Business to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member Seller Company or other direct or indirect Subsidiary of the Radiancy GroupSeller Companies engaged in the Business, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(iib) Except as set forth in Section 3.15(b3.14(b) of the Radiancy Disclosure ScheduleLetter, as of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iiic) Except as set forth in Section 3.15(c3.14(c) of the Radiancy Disclosure ScheduleLetter, as of the date hereof, no Radiancy Group member Seller Company or other direct or indirect Subsidiary of the Seller Companies engaged in the Business is in breach in any material respect of or default under (and to PHMD’s Sellers’ Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Sellers’ Knowledge, is any other Party party to any such Business Contract in breach in any material respect of or default under such Business Contract.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Photomedex Inc), Asset Purchase Agreement (ICTV Brands Inc.)
Contracts. (ia) As of the date of this Agreement, there are no Contracts that are material contracts (as defined in Item 601(b)(10) of Regulation S-K) with respect to Otic Pharma (assuming Otic Pharma was subject to the requirements of the Exchange Act), other than those Contracts identified in Section 3.15(a3.11(a) of the Radiancy Otic Pharma Disclosure Schedule.
(b) Neither Otic Pharma nor any of its Subsidiaries has entered into any transaction that would be subject to proxy statement disclosure pursuant to Item 404 of Regulation S-K (assuming Otic Pharma was subject to the requirements of the Exchange Act), other than as disclosed in Section 3.11(b) of the Otic Pharma Disclosure Schedule.
(c) Neither Otic Pharma nor any of its Subsidiaries is a party to any agreement under which a third party would be entitled to receive a license or any other right to Otic Pharma Intellectual Property as a result of the transactions contemplated by this Agreement.
(d) Section 3.11(d) of the Otic Pharma Disclosure Schedule sets forth an accurate list of lists the following Contracts to which any member of Otic Pharma in effect as of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member date of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):this Agreement:
(i) each any Contract (other than or group of related Contracts) for the purchase orders or sale of products or for Inventory) that involves performance the furnishing or receipt of services (A) which calls for performance over a period of more than 180 days from the date of this Agreement, (B) which involves an aggregate of more than $150,000 or delivery (C) in which Otic Pharma or any of its Subsidiaries has granted manufacturing rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any products or territory or has agreed to purchase a minimum quantity of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount services or value in excess of $25,000has agreed to purchase goods or services exclusively from a particular party;
(ii) each any Contract (other than purchase orders for Inventory) that involves performance under which the consequences of services a default or delivery of goods or materials termination would reasonably be likely to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000have a Otic Pharma Material Adverse Effect;
(iii) each Lease, rental any Contract that could reasonably be expected to have the effect of prohibiting or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting impairing the ownership of, leasing of, title to, use of, conduct of the business of Otic Pharma or any leasehold of its Subsidiaries or other interest in, Public Company or any personal property (except personal property leases of its Subsidiaries as currently conducted and installment and conditional sales agreements having aggregate payments of less than $50,000)as currently proposed to be conducted;
(iv) each any Contract under which Otic Pharma or any of its Subsidiaries is restricted from selling, licensing or otherwise distributing any of its technology or products, or providing services to, customers or potential customers or any class of customers, in respect any geographic area, during any period of Intellectual Property (other than licenses for shrinkwrap, clickwrap time or other similar commercially available off-the-shelf software that has not been modified any segment of the market or customized by a third Party for the Radiancy Business)line of business;
(v) each collective bargaining any dealer, distribution, joint marketing, joint venture, joint development, partnership, strategic alliance, collaboration, development agreement and other Contract to or with any labor union or other employee representative of a group of employeesoutsourcing arrangement;
(vi) any Contract for the conduct of research studies, pre-clinical or clinical studies, manufacturing, distribution, supply, marketing or co-promotion of any products in development by or which has been or which is being marketed, distributed, supported, sold or licensed out, in each joint venture, partnership, and other Contract (however named) involving a sharing case by or on behalf of profits, losses, costs, Otic Pharma or liabilities by any member of the Radiancy Group with any other Person;its Subsidiaries; and
(vii) any agreement relating Contract that would entitle any third party to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, receive a license or any consultant other right to intellectual property of Public Company or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of Public Company’s Affiliates following the foregoingClosing.
(iie) Except as set forth Otic Pharma has made available to Public Company a complete and accurate copy of each Contract listed in Section 3.15(bSections 3.10(b)(i), 3.10(b)(ii), 3.11(a), 3.11(b) and 3.11(d) of the Radiancy Otic Pharma Disclosure Schedule. With respect to each Contract so listed: (i) the Contract is legal, as of the date hereofvalid, all of the Radiancy Business Contracts are binding and enforceable and in full force and effect against Otic Pharma and/or its Subsidiaries party thereto, as applicable, and, to the knowledge of Otic Pharma, against each other party thereto, as applicable, subject to the Bankruptcy and are Equity Exception; (ii) the Contract will continue to be legal, valid, binding and enforceable and in full force and effect against Otic Pharma and/or its Subsidiaries party thereto, as applicable, and, to the knowledge of Otic Pharma, against each other party thereto, immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing (other than any such Contracts that expire or terminate before such time in accordance with their terms except and not as a result of a breach or default by Otic Pharma or its Subsidiaries), in each such case subject to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, Bankruptcy and (ii) is subject to general principles of equity.
Equity Exception; and (iii) Except as set forth in Section 3.15(c) none of Otic Pharma, its Subsidiaries nor, to the Radiancy Disclosure Scheduleknowledge of Otic Pharma, as of the date hereofany other party, no Radiancy Group member is in breach in any material respect of or violation of, or default under (under, any such Contract, and to PHMD’s Knowledge, no event has occurred which occurred, is pending or, to the knowledge of Otic Pharma, is threatened, which, with or without notice or the passage lapse of time time, or both both, would constitute a breach in any material respect of or default under) any Business Contract norby Otic Pharma, its Subsidiaries or, to PHMD’s Knowledgethe knowledge of Otic Pharma, is any other Party party under such Contract, except for such breaches, violations or defaults that, individually or in the aggregate, have not had, and are not reasonably likely to have, a Otic Pharma Material Adverse Effect.
(f) For purposes of this Agreement, the term “Contract” shall mean, with respect to any person, any written, oral or other agreement, contract, subcontract, lease (whether for real or personal property), mortgage, understanding, arrangement, instrument, note, option, warranty, license, sublicense, insurance policy, benefit plan or commitment or undertaking of any nature to which such Business Contract in breach in person is a party or by which such person or any material respect of or default its assets are bound under such Business Contractapplicable law.
Appears in 2 contracts
Sources: Share Purchase Agreement (Tokai Pharmaceuticals Inc), Share Purchase Agreement (Tokai Pharmaceuticals Inc)
Contracts. (ia) Section 3.15(aPart 2.10(a) of the Radiancy Company Disclosure Schedule sets forth an accurate list identifies, as of the date of this Agreement, each Company Contract that constitutes a Company Material Contract and which remains in effect as of the date hereof and under which a Target Company has remaining material rights or obligations. For purposes of this Agreement, each of the following Company Contracts shall be deemed to which any member of the Radiancy Group engaged in the Radiancy Business is constitute a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business ContractsCompany Material Contract”)::
(i) each any Contract in effect and which has been filed (other than purchase orders for Inventoryor is required to be filed) by the Company as an exhibit pursuant to Item 601(b)(10) of Regulation S-K under the Exchange Act, or that involves performance would be required to be disclosed under Item 404 of services or delivery of goods or materials by any member of Regulation S-K under the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000Exchange Act;
(ii) each any Contract (other than purchase orders with any labor union or any collective bargaining agreement or similar Contract for Inventory) that involves performance the benefit of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000Company Associate(s);
(iii) each Lease, rental Contract pursuant to which any Intellectual Property Rights or occupancy agreement, license, installment material Intellectual Property that has been incorporated into any Target Company’s products or services and conditional sale agreement, and is licensed to any Target Company (other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property than non-exclusive licenses to unmodified commercially available third party software) (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000“In-Bound IP License”);
(iv) each Contract in respect of pursuant to which any Company IP or Intellectual Property Rights incorporated into any Target Company’s products or services is licensed by any Target Company to any third party (other than non-exclusive licenses for shrinkwrap, clickwrap or other similar commercially available offgranted in the ordinary course of business and ordinary course licenses to third-theparties to use a Target Company’s trademarks in connection with marketing materials) (“Out-shelf software that has not been modified or customized by a third Party for the Radiancy BusinessBound IP License”);
(v) each collective bargaining agreement and any Contract (other Contract than any purchase order entered into in the ordinary course of business) with sole source or single source suppliers to any Target Company of products or services, which supplier could not otherwise be replaced with any labor union or other employee representative of a group of employeessubstantially equivalent supplier without material impact on the Target Companies;
(vi) each joint venture, partnership, and other any Contract that provides for: (however namedA) involving a sharing reimbursement of profits, losses, costsany Company Associate for, or liabilities by advancement to any member of the Radiancy Group Company Associate of, legal fees or other expenses associated with any Legal Proceeding or the defense thereof; or (B) indemnification of any Company Associate, other Personthan (in each case) (1) indemnification agreements with current and former directors and officers entered into in the ordinary course of business and (2) employment, confidentiality and consulting agreements with current and former Company Associates entered into in the ordinary course of business;
(vii) any agreement relating Contracts (A) that restrict the ability of the Target Companies to indebtedness compete in any business or with any Person in any geographical area; (B) in which the Company or any Target Company has granted “most favored nation” pricing provisions; (C) in which the Company or any Target Company has agreed to purchase a minimum quantity of goods or services, except to the extent such Contracts do not contain minimum purchase commitments in excess of $100,000 individually or $500,000 in the aggregate; or (D) which provides for borrowed money “exclusivity” or extensions any similar requirement in favor of creditany third party, in each case which restriction would or would reasonably be expected to be material to the Target Companies, taken as a whole, or any of them individually;
(viii) each any Contract containing covenants that restrict the business activity incorporating or providing for any material guaranty of any member third party’s obligations, warranty, sharing of liabilities or indemnity (including any indemnity with respect to Intellectual Property Rights) or similar obligation, other than Contracts entered into in the ordinary course of business and except for any standard terms and conditions of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any PersonTarget Companies;
(ix) any agreement Contract providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Businesscurrency hedging;
(x) any employment Contract requiring that any of the Target Companies give any written notice or consulting Contract with provide any Business Employeeinformation to any Person prior to responding to or prior to accepting any Acquisition Proposal or similar proposal, or prior to entering into any consultant discussions, agreement, arrangement or contractor understanding relating to any Acquisition Transaction, excluding for the avoidance of doubt any Contracts with provisions requiring the Radiancy Businessconsent of, or notice to, the counterparty in connection with an assignment of such Contract by, or change of control of, a Target Company;
(xi) any Contract providing for the lease or sublease of a material portion of any Target Leased Real Property;
(xii) any Contract that is a Government Contract;
(xiii) any Contract, not covered by another clause of this Section 2.10(a), that: (A) involved the payment or delivery of cash or other consideration in an amount in excess of One Hundred and Fifty Thousand Dollars ($150,000) by the Target Companies in the fiscal year ended December 31, 2021; or (B) requires by its terms the payment or delivery of cash in excess of One Hundred and Fifty Thousand Dollars ($150,000) in the fiscal year ending December 31, 2022;
(xiv) any Contract that has a term of more than one year and which may not be terminated by a Target Company (without penalty in excess of Fifty Thousand Dollars ($50,000)) within 120 days after the delivery of a termination notice by such Target Company (other than at-will arrangements that do not include severance confidentiality or “change of control” provisionsnondisclosure agreements entered into by any Target Company);
(xv) any Contract relating to Debt; and
(xixvi) any Contract, the termination of which would have a Company Material Adverse Effect. The Company has delivered or Made Available (including by filing with the SEC) to Parent an accurate and complete copy of each amendment, supplement, and modification (whether oral or written) in respect of any Company Contract that constitutes a Company Material Contract as of the foregoingdate of this Agreement.
(b) Each Company Contract that constitutes a Company Material Contract is valid and in full force and effect (except for Contracts that are expired, terminated, and/or not renewed during the Pre-Closing Period), and is enforceable in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies (the “Enforceability Exceptions”).
(c) Except as set forth in Section 3.15(bPart 2.10(c) of the Radiancy Company Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability : (i) may be limited by bankruptcynone of the Target Companies is in violation or breach of, insolvencyor default under, reorganizationany Company Material Contract, moratorium which violation, breach or other similar laws relating default is material to creditors’ rights generallythe Target Companies, and taken as a whole; (ii) is subject to general principles the knowledge of equity.
the Company, no other Person is, in any material respect, in violation or breach of, or default under, any Company Material Contract; (iii) Except as set forth in Section 3.15(c) to the knowledge of the Radiancy Disclosure Schedule, as of the date hereofCompany, no Radiancy Group member is event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (A) result in a violation or breach of any Company Material Contract, which violation or breach would be material to the Target Companies, taken as a whole; (B) give any Person the right to declare a default in any material respect of or default under any Company Material Contract; (and C) give any Person the right to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach accelerate in any material respect the maturity or performance of any Company Material Contract; or default under(D) give any Business Contract norPerson the right to cancel, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach terminate or modify in any material respect any Company Material Contract; and (iv) between December 31, 2020 and the date of this Agreement, none of the Target Companies has received any written notice (or, to the knowledge of the Company, any other communication) regarding any actual or possible material violation or breach of, or material default under such Business under, any Company Material Contract.
Appears in 2 contracts
Sources: Employment Agreement (AutoWeb, Inc.), Merger Agreement (AutoWeb, Inc.)
Contracts. (ia) Section 3.15(a) 4.14 of the Radiancy Disclosure Schedule sets forth an a complete and accurate list of the following Contracts to which the Company or any member of its Subsidiaries is a party as of the Radiancy Group engaged in the Radiancy Business is date hereof (each, a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, “Material Contract” and collectively the “Radiancy Business Material Contracts”):
(i) each any Contract (other than including purchase orders for Inventoryorders) that involves performance of services or delivery of goods or materials by or to the Company or any member of the Radiancy Group engaged in the Radiancy Business its Subsidiaries of an amount or value in excess of $25,00025,000 individually or $75,000 in the aggregate with the same counterparty;
(ii) each any Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials relating to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value capital expenditures and involving future payments in excess of $25,00010,000 individually or $25,000 in the aggregate;
(iii) each Leaseany Contract that expires more than one year after the date of this Agreement (including any Contract that renews automatically unless a party to such Contract gives notice of non-renewal), except for non-disclosure agreements entered into in the ordinary course of business, employment agreements entered into on the Company’s standard form of employee agreement, licenses for Shrink-Wrapped Code and licenses of Open Source;
(iv) any Contract with support obligations that cannot be terminated with ninety (90) days’ notice without penalty;
(v) any Contract providing for indemnification by the Company or any of its Subsidiaries of any Person, other than Contracts entered in the ordinary course of business the purpose of which is not indemnification and where such indemnification is ancillary to the primary purpose of such Contracts;
(vi) any dealer, distributor, reseller, sales representative, affiliate, joint marketing, strategic alliance, or similar Contract;
(vii) (A) any Contract (other than those required to be disclosed pursuant to Section 4.14(a)(xix) hereof) with any current shareholder, officer or director of the Company, or any “affiliate” or “associate” of such persons (as such terms are defined in the rules and regulations promulgated under the Securities Act) (any of the foregoing, a “Related Party”), including any Contract providing for the furnishing of services by, rental of real or occupancy agreementpersonal property from, or otherwise requiring payments to or from any Related Party, or (B) any other Affiliate Agreement;
(viii) any Contract limiting the ability of the Company or any of its Subsidiaries to engage or participate, or compete with any other Person, in any line of business, market or geographic area, or to make use of any Intellectual Property, or any Contract granting most favored nation pricing, exclusive sales, distribution, marketing or other exclusive rights, rights of refusal, rights of first negotiation or similar rights and/or terms to any Person, or any Contract otherwise materially limiting the right of the Company or any of its Subsidiaries to sell, distribute or manufacture any products or services or to purchase or otherwise obtain any Intellectual Property, software, components, parts, subassemblies or services;
(ix) all IP Contracts, excluding licenses for only Shrink-Wrapped Code, licenses of Open Source set forth in Section 4.12(r) of the Disclosure Schedule, non-disclosure Contracts entered into the ordinary course of business consistent with past practice, Contracts for the sale, license, installment support or service of Company Products in the ordinary course of business consistent with past practice pursuant to the Company’s or its Subsidiaries’ standard customer Contract, the form of which has been made available to Buyer;
(x) all licenses, sublicenses and conditional sale other Contracts pursuant to which the Company or any of its Subsidiaries has agreed to any restriction on the right of the Company or any of its Subsidiaries to use or enforce any Company Intellectual Property or pursuant to which the Company or any of its Subsidiaries agrees to encumber, transfer or sell rights in or with respect to any Intellectual Property that are, or were, Company Intellectual Property;
(xi) any Contract providing for the development of any Intellectual Property, independently or jointly, by or for the Company or any of its Subsidiaries, except for any Contract between the Company or any of its Subsidiaries and any of their respective Employees and Contractors;
(xii) any trust, loan agreement, indenture, note, bond, debenture or any other document or Contract evidencing Indebtedness to any Person, any capitalized lease obligation, or any commitment to provide any of the foregoing, or any agreement of guaranty, or other similar commitment with respect to the obligations or Liabilities of any other Person;
(xiii) any Contract for the disposition of any material portion of the assets or business (whether by merger, sale of shares, sale of assets or otherwise) of the Company or any of its Subsidiaries;
(xiv) any Contract for the acquisition of the business or capital stock of another party (whether by merger, sale of stock, sale of assets or otherwise);
(xv) any hedging, futures or other derivative Contract;
(xvi) any Contract concerning a joint venture, joint development or other similar arrangement with one or more Persons;
(xvii) any (A) Contract, including any stock option plan, stock appreciation rights plan, stock purchase plan or phantom stock plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated or may be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, and (B) Share Restriction Agreement;
(xviii) any Contract creating any obligation with respect to the payment of any severance, retention, bonus, success, change of control or other similar payment to any Person the payment or acceleration of which is triggered by the Company entering into this Agreement, or the consummation of any of the transactions contemplated hereby or any subsequent transactions or events;
(xix) any Contract for the employment or engagement of any director, officer, employee or consultant of the Company or any of its Subsidiaries or any other type of Contract with any officer, employee, director or consultant of the Company or any of its Subsidiaries that is not immediately terminable by the Company or such Company’s Subsidiary without cost or Liability, including any Contract requiring it to make a payment to any director, officer, employee or consultant on account of the Acquisition (other than as expressly contemplated by this Agreement and other than Company Options award agreements);
(xx) any Contract with any labor union or any collective bargaining agreement or similar contract with the Company’s or its Subsidiaries’ employees;
(xxi) any settlement agreement with respect to any Action;
(xxii) any Contract with any investment banker, broker, advisor or similar party, or any accountant, legal counsel or other Person retained by the Company or any of its Subsidiaries, in connection with this Agreement and the transactions contemplated hereby;
(xxiii) any lease of personal property or other Contract materially affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)property;
(ivxxiv) each Contract in respect of Intellectual any Real Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business)Lease;
(vxxv) each collective bargaining agreement and any Contract that as a result of the execution of this Agreement by the Company would require the Company or any of its Subsidiaries to provide notice to another Person or take any other action not otherwise required under the terms of such Contract, or would give rise to any additional rights or obligations under such Contract; or
(xxvi) any other Contract to that involves $10,000 individually or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors $25,000 in the Ordinary Course of Business;
aggregate or more and is not cancellable without penalty within thirty (x30) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoingdays.
(iib) Except as set forth in Section 3.15(bTrue, complete and correct copies of each Material Contract (including all amendments thereto) have been made available to Buyer. Each Material Contract is a valid and binding agreement of the Radiancy Disclosure ScheduleCompany or one of its Subsidiaries and, as to the Knowledge of the date hereofCompany, all each other party thereto, enforceable against the Company or one of its Subsidiaries, and, to the Knowledge of the Radiancy Business Contracts are Company, each other party thereto, in accordance with its terms, and is in full force and effect and are enforceable in accordance with their terms except respect to the extent that such enforceability Company and its Subsidiaries, as applicable, and, to the Knowledge of the Company, each other party thereto, subject to (i) may be limited by laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generallyinsolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. The Company and each of its Subsidiaries is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) material compliance with and has not materially breached, violated or defaulted under, or received written notice that it has materially breached, violated or defaulted under, any of the Radiancy Disclosure Scheduleterms or conditions of any Material Contract, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledgethe Knowledge of the Company, is any other Party party to any such Business Material Contract in breach in any material respect of breach, violation or default under such Business thereunder.
(c) The Company and each of its Subsidiaries has performed all material obligations required to have been performed by the Company or its Subsidiaries pursuant to each Material Contract.
(d) All outstanding indebtedness for borrowed money of the Company or its Subsidiaries may be prepaid without penalty, premium or other costs of any kind beyond principal and accrued interest.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Mimecast LTD)
Contracts. (ia) All Contracts, including amendments thereto, required to be filed with the Securities Authorities on or after January 1, 2020, pursuant to Securities Laws have been filed. All such filed Contracts will be deemed to have been made available to NXDT.
(b) Other than the Contracts described in Section 3.15(a4.16(a), Section 4.16(b) of the Radiancy Company Disclosure Schedule Letter sets forth an accurate list of the following Contracts to which any member of the Radiancy Group engaged a complete list, in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, case as of the date hereof, of each Contract (or the accurate description of principal terms in case of oral Contracts), including all amendments, supplements and side letters thereto that modify each such Contract in any material respect, to which the Company or any of the Radiancy Business Contracts Company Subsidiaries is a party or by which it is bound or to which any of their respective assets are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability subject that:
(i) may be is a limited by bankruptcyliability company agreement, insolvency, reorganization, moratorium partnership agreement or other joint venture agreement or similar laws relating to creditors’ rights generally, and Contract with a third party;
(ii) is subject to general principles of equity.a Management Agreement;
(iii) Except is a Material Company Lease;
(iv) is a Material Company Space Lease;
(v) is a franchise, agency, sales promotion, market research, marketing consulting or advertising Contract;
(vi) contains covenants of the Company or any of the Company Subsidiaries purporting to limit, in any material respect, either the type of business in which the Company or any of the Company Subsidiaries or any of their affiliates may engage or the geographic area in which any of them may so engage;
(vii) evidences Indebtedness for borrowed money or any capitalized lease obligations and other Indebtedness to any Person, (A) in excess of $100,000 of the Company or any of the Company Subsidiaries, whether unsecured or secured or (B) secured by Owned Real Property (such Contracts, the “Existing Loan Documents”);
(viii) provides for the purchase, sale, assignment, ground leasing or disposition of or a Transfer Right to purchase, sell, dispose of, assign or ground lease, in each case, by merger, purchase or sale of assets or stock or otherwise, directly or indirectly, any (A) real property (including any Owned Real Property or any portion thereof) or equity interests of any Person or (B) any other material asset of the Company or any Company Subsidiary with a fair market value or purchase price greater than $200,000;
(ix) except for any capital contribution requirements as set forth in the Organizational Documents of any Person set forth in Section 3.15(c4.17(b)(ix) of the Radiancy Company Disclosure ScheduleLetter, or with respect to any Development Project, (A) requires the Company or any Company Subsidiary to make any investment (in each case, in the form of a loan, capital contribution or similar transaction) in any Company Subsidiary or other Person in excess of $100,000 or (B) evidences a loan (whether secured or unsecured) made to, or on behalf of, any other Person in excess of $100,000;
(x) relates to the settlement (or proposed settlement) of any pending or threatened suit or proceeding, other than any settlement that provides solely for the payment of less than $250,000 in cash (net of any amount covered by insurance or indemnification that is reasonably expected to be received by the Company or any Company Subsidiary);
(xi) with any current executive officer, director or trustee of the Company, as applicable, or any of the Company Subsidiaries, any shareholder of the Company beneficially owning 5% or more of outstanding Company Capital Shares or, to the knowledge of the Company, any member of the “immediate family” (as such term is defined in Item 404 of Regulation S-K promulgated under the Securities Act) of any of the foregoing
(xii) constitutes an interest rate cap, interest rate collar, interest rate swap or other Contract or agreement relating to a holding transaction;
(xiii) is a severance, or change of control agreement or provides for indemnification or holding harmless of any officer, manager, director, trustee or employee, or is an employment, staffing, independent contractor, professional employer organization, staffing company, temporary employment agency, or leased employee agreement or arrangement, or any collective bargaining agreement;
(xiv) has continuing “earn-out” or other similar contingent purchase price payment obligations, in each case that could result in payments, individually or in the aggregate, with a value in excess of $100,000; or
(xv) governs the formation, creation, governance, economics or control of any joint venture, partnership, strategic alliance or other similar arrangement (or sets forth the materials terms thereof) that is material to the business of the Company and the Company Subsidiaries, taken as a whole, other than with respect to any partnership that is wholly owned by the Company or any of its wholly owned Subsidiaries; or
(xvi) is not described in clauses (i) through (xiv) above and calls for or guarantees (A) aggregate payments by the Company and the Company Subsidiaries of more than $500,000 over the remaining term of such Contract or (B) annual aggregate payments by the Company and the Company Subsidiaries of more than $100,000. Each Contract of a type described in clauses (a) and (b) of this Section 4.16 is referred to in this Agreement as a “Company Material Contract.” The Company has made available to NXDT true and complete copies of all Company Material Contracts as of the date hereof, no Radiancy Group member including amendments and supplements thereto.
(i) Neither the Company nor any Company Subsidiary is in (or has received any written claim of) breach in any material respect of or default under (and the terms of any Company Material Contract, and, to PHMD’s Knowledgethe knowledge of the Company, no event has occurred which that with notice or the passage lapse of time or both would constitute a breach in any material respect of or default underthereunder by the Company or any Company Subsidiary, in each case, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect and (ii) any Business Contract norto the knowledge of the Company, to PHMD’s Knowledge, is any no other Party party to any such Business Company Material Contract is in breach in any material respect of or default under the terms of any Company Material Contract where such Business Contractbreach or default would reasonably be expected to have a Company Material Adverse Effect. As of the date of this Agreement, each Company Material Contract is a valid and binding agreement of the Company or a Company Subsidiary, as applicable, and, to the knowledge of the Company, the other parties thereto and is in full force and effect, subject to the Bankruptcy and Equity Exception, except as would not reasonably be expected to adversely affect the Company or any of the Company Subsidiaries in any material respect.
Appears in 2 contracts
Sources: Merger Agreement (Nexpoint Diversified Real Estate Trust), Merger Agreement (Nexpoint Diversified Real Estate Trust)
Contracts. Except for Commitments (ias defined below in Section 2.16(o)) Section 3.15(alisted on Schedule 2.13(a) of the Radiancy Disclosure or Schedule 2.18(a), Schedule 2.16 sets forth an accurate (subject to the dollar amount limitations of clauses (b) or (c) below) a true and complete list of the following Contracts contracts, agreements, instruments and commitments to which the Company or any member of its Subsidiaries is a party or otherwise relating to or affecting any of the Radiancy Group engaged Assets or the operations of the Company or any of its Subsidiaries, whether written or oral:
(a) any material contracts, agreements and commitments not made in the Radiancy Business is a Party or by which any member ordinary course of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000business;
(iib) each Contract (other contracts calling for payments by or to the Company or any of its Subsidiaries of amounts greater than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,0001,000,000;
(iiic) each Leasecontracts, rental or occupancy agreementloan agreements, licenseletters of credit, installment repurchase agreements, mortgages, security agreements, guarantees, pledge agreements, trust indentures and conditional sale agreement, promissory notes and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement documents relating to indebtedness for borrowed the borrowing of money or extensions for lines of credit;
(viiid) each Contract containing covenants that restrict agreements with respect to the business activity sharing or allocation of Taxes or Tax costs;
(e) agreements for the sale of any member of material assets, property or rights other than in the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line ordinary course of business or for the grant of any options or preferential rights to compete with purchase any Personmaterial assets, property or rights;
(ixf) documents granting any agreement providing for indemnification by any member power of attorney with respect to the affairs of the Radiancy Group, other than indemnification provided to customers Company or vendors in the Ordinary Course of Businessits Subsidiaries;
(xg) suretyship contracts, performance bonds, working capital maintenance, support agreements, contingent obligation agreements and other forms of guaranty agreements;
(h) any employment material contracts or consulting Contract commitments limiting or restraining the Company or any Subsidiary from engaging or competing in any lines of business or with any Business Employeeperson;
(i) with respect to natural gas liquids, or any consultant or contractor of the Radiancy Businesstransportation agreements, product purchase agreements, fractionation agreements, processing agreements, balancing agreements, interconnection agreements and storage agreements other than at-will arrangements that do terminaling contracts terminable on notice of one year or less;
(j) any collective bargaining agreements;
(k) any contracts between the Company or its Subsidiaries, on the one hand, and the Seller or its affiliates (other than the Company or its Subsidiaries), on the other hand;
(l) any indemnification agreements not include severance made in the ordinary course of business;
(m) any material partnership, joint venture or “change of control” provisionssimilar agreements;
(n) capital leases; and
(xio) each amendmentall amendments, supplementmodifications, and modification (whether oral extensions or written) in respect renewals of any of the foregoing.
foregoing (iithe types of contracts, agreements and documents described in subsections (a) Except through (o) are hereinafter referred to collectively as set forth in Section 3.15(b) the "Commitments" and individually as a "Commitment"). Each Commitment is valid, binding and enforceable against the Company and/or each Subsidiary of the Radiancy Disclosure ScheduleCompany that is a party thereto in accordance with its terms, as of the date hereof, all of the Radiancy Business Contracts are and in full force and effect and are enforceable in accordance with their terms on the date hereof (except to the extent that such its enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium reorganization or other similar laws relating law affecting the enforcement of creditors' rights generally or by general equitable principles). The Company and each of its Subsidiaries, as the case may be, have performed in all material respects all obligations required to creditors’ rights generallybe performed by them under, and (ii) is subject to general principles are not in material default or breach of equity.
(iii) Except as set forth in Section 3.15(c) respect of, any Commitment, and no event has occurred which, with due notice or lapse of time or both, would constitute such a default. To the knowledge of the Radiancy Disclosure Schedule, as Seller and the Company or any of the date hereofits Subsidiaries, no Radiancy Group member other party to any Commitment is in breach default in any material respect of or default under (thereof, and to PHMD’s Knowledge, no event has occurred which which, with due notice or the passage lapse of time or both both, would constitute such a breach in default. The Seller has made available to the Buyer or its representatives true and complete originals or copies of all the Commitments and a copy of every material default notice received by the Seller or the Company or any material of its Subsidiaries during the past one year with respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contractthe Commitments.
Appears in 2 contracts
Sources: Purchase Agreement (Enterprise Products Operating L P), Purchase Agreement (Williams Companies Inc)
Contracts. (ia) Section 3.15(a) of the Radiancy The Disclosure Schedule sets forth an accurate list of lists, in the following categories, the following Contracts of Seller or the Subsidiaries relating to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Aesthetics Business (collectively, the “Radiancy Business Scheduled Contracts”):
(i) each Each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value requires payments in excess of $25,00050,000 annually or in excess of $50,000 over its term (including periods covered by any option to extend or renew by either party), and is not terminable by Seller or the Subsidiaries upon less than 30 days’ notice;
(ii) each Each Contract relating to all material machinery, tools, equipment and other tangible personal property (other than purchase orders for Inventoryinventory and supplies) that involves performance of services owned, leased or delivery of goods used by Seller or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000Subsidiary;
(iii) each LeaseEach material supply, rental manufacturing, marketing, distribution or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, agreement or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)similar Contract;
(iv) Each material consulting, development, joint development, research and development or similar Contract, and each Contract in respect of contract under which Seller or any Subsidiary has granted or obtained a license to Intellectual Property (Property, other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf commercial software that has not been modified or customized by a third Party for the Radiancy Business)licenses;
(v) each collective bargaining agreement and other Contract to or with any labor union All acquisition, partnership, joint venture, teaming arrangements or other employee representative of a group of employeessimilar Contracts;
(vi) each joint venture, partnership, and other Any Contract (however named) involving under which Seller or any Subsidiary has agreed not to compete or has granted to a sharing third party an exclusive right that restricts or otherwise adversely affects the ability of profits, losses, costs, Seller or liabilities by any member of the Radiancy Group with any other PersonSubsidiary to conduct its Aesthetics Business;
(vii) any agreement All Contracts for clinical or marketing trials relating to indebtedness for borrowed money Aesthetics Devices and all Contracts with physicians, hospitals or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenantsother healthcare providers, or limit the freedom of any member of the Radiancy Group to engage in any line of business other scientific or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoingmedical advisors.
(iib) Except as set forth Seller has delivered to Purchaser true and correct copies (or summaries, in Section 3.15(bthe case of any oral Contracts) of all such Scheduled Contracts. To the Radiancy Disclosure ScheduleKnowledge of Seller, no notice of default arising under any Scheduled Contract has been delivered to or by Seller or either Subsidiary. Each Scheduled Contract is a legal, valid and binding obligation of Seller or a Subsidiary, as of the date hereofcase may be, all of enforceable against Seller or the Radiancy Business Contracts are in full force and effect and are enforceable Subsidiary party, as the case may be, in accordance with their terms its terms, except to the extent that such enforceability (i) as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to affecting creditors’ rights generally, generally and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of , and neither Seller nor the Radiancy Disclosure ScheduleSubsidiary party, as of the date hereofcase may be, no Radiancy Group member nor, to Seller’s Knowledge, any other party thereto, is in breach breach, violation or default thereunder in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contractrespect.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Iridex Corp), Asset Purchase Agreement (American Medical Systems Holdings Inc)
Contracts. (ia) Section 3.15(aSchedule 3.5(a) contains a true and complete list (organized by subclause) of all Contracts related to the Radiancy Disclosure Schedule sets forth an accurate list of the following Contracts Business to which any member of the Radiancy Group engaged in the Radiancy Business Seller is a Party party, or by which any member of its property or assets are bound, that fall into one (1) or more of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business following categories (collectively, the “Radiancy Business Contracts”):
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials all Contracts involving aggregate payment by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value Seller in excess of $25,00025,000 following the Closing Date or requiring unsatisfied performance by any party more than six (6) months from the Closing Date, which, in each case, cannot be cancelled without penalty or without more than thirty (30) days’ notice;
(ii) each Contract (all Contracts between or among the Seller, on the one hand, and any stockholders, officers, directors, members, managers or Affiliate of Seller, on the other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000hand;
(iii) each Lease, rental all Contracts providing product or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)service warranties to third parties;
(iv) each Contract in respect all Contracts that require Seller to purchase or sell a material stated portion of Intellectual Property (other than licenses for shrinkwrap, clickwrap the requirements or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for outputs of the Radiancy Business);
(v) each collective bargaining agreement and other Contract all Contracts the primary purpose of which is to indemnify any Person or with the assumption of any labor union Tax or other employee representative Liability of a group of employeesany Person;
(vi) each joint ventureall Contracts (excluding, partnershipfor the avoidance of doubt, and other Contract (however namedany Permit) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other PersonGovernmental Authority including any county or local recording office;
(vii) any agreement relating all Contracts that limit or purport to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom ability of any member of the Radiancy Group Seller to engage compete in any line of business or to compete with any PersonPerson or in any geographic area or during any period of time;
(viii) all joint venture, partnerships or similar Contracts;
(ix) any agreement providing for indemnification by any member all powers of attorney related to the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of BusinessPurchased Assets;
(x) any employment or consulting Contract with any Business Employeeall Intellectual Property Agreements;
(xi) all Contracts governing the Excluded Intellectual Property (the “Excluded Intellectual Property Agreements”);
(xii) except for Contracts relating to trade receivables and the Loan Agreement, or any consultant or contractor of all Contracts relating to Encumbrances against the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisionsPurchased Assets; and
(xixiii) each amendment, supplement, all other Contracts related to the Purchased Assets. Seller has furnished accurate and modification (whether oral or written) in respect complete copies of any all of the foregoingBusiness Contracts to Buyer.
(iib) The Business Contracts include each of the Assigned Contracts. Each of the Business Contracts that is a Purchased Asset is a valid and binding obligation of Seller and, to Seller’s Knowledge, the other parties thereto, enforceable in accordance with its terms, subject to applicable bankruptcy, and insolvency laws, and to the exercise of judicial discretion in accordance with general principles of equity. Except as set forth in Section 3.15(b) on Schedule 3.5(b), there have not been any material defaults by Seller or, to the Knowledge of Seller, material defaults or any claims of material default or claims of material non-enforceability by the other party or parties under or with respect to any of the Radiancy Disclosure ScheduleBusiness Contracts that is a Purchased Asset, and to the Knowledge of Seller, there are no facts or conditions that have occurred or, as of to assignability, except for the date hereoftransaction contemplated by this Agreement, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance which, with their terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both the giving of notice, or both, would constitute a breach in material default by Seller, or to the Knowledge of Seller, by the other party or parties, under any material respect of the Business Contracts that is a Purchased Asset or default under) would cause a creation or imposition of any Business Contract nor, to PHMD’s Knowledge, is Encumbrance upon any other Party to any such Business Contract in breach in any material respect of the Purchased Assets or default under such Business Contractotherwise would materially and adversely affect the Purchased Assets.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Nutri System Inc /De/)
Contracts. (i) Section 3.15(a) of the Radiancy Photomedex Technology Disclosure Schedule sets forth an accurate list of the following Contracts to which any member of the Radiancy Group Company engaged in the Radiancy Company Business is a Party or by which any member of the Radiancy Group Company is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Company Business (collectively, the “Radiancy Company Business Contracts”):
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group Company engaged in the Radiancy Company Business of an amount or value in excess of $25,000;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group Company engaged in the Radiancy Company Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Company Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group Company with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy GroupCompany, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group Company to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy GroupCompany, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Company Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Photomedex Technology Disclosure Schedule, as of the date hereof, all of the Radiancy Company Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Photomedex Technology Disclosure Schedule, as of the date hereof, no Radiancy Group member the Company is not in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contract.
Appears in 2 contracts
Sources: Merger Agreement (Photomedex Inc), Merger Agreement (Ds Healthcare Group, Inc.)
Contracts. (ia) Section 3.15(a) of the Radiancy Trident Disclosure Schedule sets forth an accurate list forth, as of the following Contracts date of this Agreement, a true and complete list, and Trident has made available to which any member Sun prior to the date of the Radiancy Group engaged in the Radiancy Business is a Party this Agreement true and complete copies (including all material amendments, modifications, extensions, renewals, schedules, exhibits or by which any member of the Radiancy Group is bound that is primarily used inancillary agreements with respect thereto), or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):of:
(i) each Contract that would be required to be filed by Trident as a “material contract” pursuant to Item 601 (other than purchase orders for Inventoryb)(10) that involves performance of services or delivery of goods or materials by any member of Regulation S-K under the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000Securities Act;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services to which Trident or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount Trident Subsidiaries is a party involving expected annual revenues or value expected annual expenditures in excess of $25,0005,000,000 in 2023;
(iii) each LeaseContract to which Trident or any of the Trident Subsidiaries is a party that restricts in any material respect the ability of Trident or any of the Trident Subsidiaries (A) to compete or engage in any line of business or with any Person in any geographical area, rental (B) to sell, supply or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title todistribute any material Trident Offering, use ofor enforce any material Intellectual Property Rights owned by or exclusively licensed to Trident or any Trident Subsidiary, (C) to solicit any (potential or actual) customer or supplier, or (D) that otherwise has the effect of materially restricting Trident, the Trident Subsidiaries or any leasehold of their respective affiliates from the development, marketing or other interest indistribution of Trident Offerings, in each case, in any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)geographic area;
(iv) each Contract in respect to which Trident or any of Intellectual Property the Trident Subsidiaries is a party that is material and obligates Trident or a Trident Subsidiary to conduct business with any third party on a preferential or exclusive basis, or that includes “most favored nation” or similar provisions;
(other than licenses for shrinkwrapA) each loan and credit agreement, clickwrap Contract, note, debenture, bond, indenture, mortgage, security agreement, pledge, or other similar commercially available off-the-shelf software that has not been modified agreement pursuant to which any Indebtedness of Trident or customized by a third Party for any of the Radiancy Business);
Trident Subsidiaries in excess of $5,000,000 is outstanding or may be incurred, other than any such agreement between or among Trident and one or more wholly owned Trident Subsidiaries and (vB) each collective bargaining agreement and other Contract governing or amending, modifying, supplementing or otherwise relating to or with the Trident Indenture (including any labor union or other employee representative of a group of employeeshedging obligations entered into in connection therewith);
(vi) each joint venture, partnership, and other joint venture or similar Contract (however named) involving a sharing of profits, losses, costs, to which Trident or liabilities by any member of the Radiancy Group with Trident Subsidiaries is a party relating to the formation, creation, operation, management or control of any partnership or joint venture or to the ownership of any equity interest in any entity or business enterprise other Personthan the wholly owned Trident Subsidiaries;
(vii) each Contract to which Trident or any agreement relating of the Trident Subsidiaries is a party that contains covenants, indemnities or other continuing obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to indebtedness for borrowed money result in the making by Trident or extensions any Trident Subsidiary of creditfuture payments in excess of $5,000,000;
(viii) each Contract containing covenants pursuant to which Trident or the Trident Subsidiaries receives from any third party a license or similar right to any Intellectual Property Right material to Trident and the Trident Subsidiaries taken as a whole, and that restrict are not (A) non-exclusive licenses granted in the business activity ordinary course of any member business; (B) Contracts under which open source technology is licensed; or (C) Contracts with current or former employees and service providers that were entered into in the ordinary course of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Personbusiness;
(ix) each Contract with a Governmental Entity to which Trident or a Trident Subsidiary is a party, and pursuant to which Trident or a Trident Subsidiary has any agreement providing for indemnification by any member of the Radiancy Group, material future obligation other than indemnification provided to customers or vendors the provision of Trident Offerings in the Ordinary Course ordinary course of Business;business consistent with past practice; and
(x) each Contract that gives any employment or consulting Contract with Person the right to acquire any Business Employee, material assets of Trident or any consultant Trident Subsidiary (excluding ordinary course commitments to purchase Trident products) after the date hereof. Each agreement, understanding or contractor undertaking of the Radiancy Business, other than at-will arrangements that do not include severance or type described in this Section 3.15(a) is referred to herein as a “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoingTrident Material Contract”.
(iib) Except as set forth for matters which, individually or in Section 3.15(b) of the Radiancy Disclosure Scheduleaggregate, as of the date hereofhave not had and would not reasonably be expected to have a Trident Material Adverse Effect, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) each Trident Material Contract (including, for purposes of this Section 3.15(b), any Contract entered into after the date of this Agreement that would have been a Trident Material Contract if such Contract existed on the date of this Agreement) is a valid, binding and legally enforceable obligation of Trident or one of the Trident Subsidiaries, as the case may be, and, to the Knowledge of Trident, of the other parties thereto, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or other similar laws relating to Laws affecting creditors’ rights generally, generally and (ii) is subject to by general principles of equity.
; (ii) each such Trident Material Contract is in full force and effect; (iii) Except as set forth in Section 3.15(c) none of Trident or any of the Radiancy Disclosure ScheduleTrident Subsidiaries is (with or without notice or lapse of time, as of the date hereof, no Radiancy Group member is or both) in breach in any material respect of or default under (and any such Trident Material Contract and, to PHMD’s Knowledgethe Knowledge of Trident, no event has occurred which other party to any such Trident Material Contract is (with or without notice or the passage lapse of time time, or both would constitute a both) in breach in any material respect of or default underthereunder; (iv) to the Knowledge of Trident, each other party to a Trident Material Contract has performed all material obligations required to be performed by it under such Trident Material Contract; and (v) no party to any Business Trident Material Contract has given Trident or any of the Trident Subsidiaries notice (whether written or oral) of its intention to cancel, terminate, change the scope of rights under or fail to renew any Trident Material Contract and neither Trident nor any of the Trident Subsidiaries, nor, to PHMD’s Knowledgethe Knowledge of Trident, is any other Party party to any such Business Contract Trident Material Contract, has repudiated (whether orally or in breach in writing) any material respect provision thereof. No Trident Material Contract can be reasonably expected to prevent or materially delay the consummation of the Mergers or default under such Business Contractany of the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (3d Systems Corp), Merger Agreement (3d Systems Corp)
Contracts. (i) Section 3.15(a3.1(p) of the Radiancy Disclosure Schedule sets forth an accurate Letter contains a list of the following Contracts contracts, correct, current and complete copies of which have been made available to the Purchaser:
(A) any lease of real property by Four Seasons or any of its subsidiaries, as tenant, with third parties providing for annual rentals of $1,000,000 or more;
(B) any Contract under which Four Seasons or any member of the Radiancy Group engaged its subsidiaries is obliged to make payments on an annual basis in excess of $2,500,000 in the Radiancy Business aggregate;
(C) any partnership, limited liability company agreement, joint venture, alliance agreement or other similar agreement or arrangement relating to the formation, creation, operation, management, business or control of any partnership or joint venture which is not a Party wholly-owned subsidiary of Four Seasons (other than any such agreement or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, arrangement relating to the operation or business of a property in the Radiancy Business (collectively, the “Radiancy Business Contracts”):ordinary course and which is not material with respect to such property) where Four Seasons’ obligations with respect to any such partnership or joint venture exceed $5,000,000 individually where such obligations arise from Management Agreements or exceed $2,500,000 individually where such obligations do not arise from Management Agreements;
(iD) each any Contract (other than purchase orders with or among wholly-owned subsidiaries) under which Indebtedness for Inventoryborrowed money in excess of $2,500,000 is outstanding or may be incurred or pursuant to which any property or asset of Four Seasons or any of its subsidiaries is mortgaged, pledged or otherwise subject to a Lien (other than a Permitted Lien), or any Contract restricting the incurrence of Indebtedness by Four Seasons or any wholly-owned subsidiary or the incurrence of Liens (other than Permitted Liens) on any Properties or securities of wholly-owned subsidiaries or restricting the payment of dividends or the transfer of any Owned Real Properties;
(E) except pursuant to any Management Agreement or any agreement relating thereto, any Contract that involves performance purports to limit the right of services Four Seasons or delivery any of goods its subsidiaries or materials by affiliates to, in any member material respect (i) engage in any line of business, or (ii) compete with any person or operate in any location;
(F) any Contract providing for the Radiancy Group engaged in the Radiancy Business of an amount sale or exchange of, or option to sell or exchange, any Property with a fair market value in excess of $25,000;
(ii) each Contract (other than 5,000,000, or for the purchase orders for Inventory) that involves performance of services or delivery of goods exchange of, or materials option to purchase or exchange, any member of the Radiancy Group engaged in the Radiancy Business of an amount or Property with a fair market value in excess of $25,0005,000,000 entered into in the past 12 months or in respect of which the applicable transaction has not been consummated;
(iiiG) each Leaseany Contract entered into in the past 12 months or in respect of which the applicable transaction has not yet been consummated for the acquisition or disposition, rental directly or occupancy agreementindirectly (by amalgamation, licensemerger or otherwise), installment and conditional sale agreement, and of assets (other Contract affecting the ownership of, leasing of, title to, use of, than Contracts referenced in clause (F) of this Section 3.1(p)(i)) or any leasehold capital stock or other interest inequity interests of another person for aggregate consideration in excess of $2,500,000, any personal property (except personal property leases in each case other than in the ordinary course of business and installment and conditional sales agreements having aggregate payments of less than $50,000)in a manner consistent with past practice;
(ivH) each Contract in respect pursuant to which Four Seasons or any of Intellectual Property its subsidiaries or affiliates manages, operates or provides goods or services to or for any hotel, resort, fractional interest program, condominium, development, food and beverage operation or other similar business or property of a third party owner (together with any Contract related thereto, the “Management Agreements”), and each franchise or other agreement pursuant to which Four Seasons or any of its subsidiaries grants any rights to a third party (other than licenses for shrinkwrapFour Seasons or any of its wholly-owned subsidiaries) to operate any hotel, clickwrap resort, fractional interest program, condominium, development, food and beverage operation or other similar commercially available off-the-shelf software that has not been modified business or customized by property utilizing any of the Intellectual Property Rights, other than agreements incidental to the operation of a third Party for particular hotel property in the Radiancy Business)ordinary course of business;
(vI) each collective bargaining agreement and other Contract to or with except for any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by radius restrictions contained in any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited toManagement Agreement, any exclusivity covenants, standstill or limit similar Contract currently restricting the freedom ability of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, Four Seasons or any consultant of its subsidiaries to offer to purchase or contractor purchase the assets or equity securities of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisionsanother person; and
(xiJ) each amendmentany Contract (other than Contracts referenced in clauses (A) through (I) of this Section 3.1(p)(i)) which has been filed by Four Seasons or its affiliates with Securities Authorities as a material contract and forming part of Four Seasons’ Public Disclosure Record (the Contracts described in clauses (A) through (J), supplementtogether with all exhibits and schedules thereto being, and modification (whether oral or written) in respect of any of the foregoing“Material Contracts”).
(ii) Except as set forth in Section 3.15(b) None of Four Seasons or any of its subsidiaries or affiliates or, to the knowledge of Four Seasons, any of the Radiancy Disclosure Scheduleother parties thereto, as is in breach or violation of, or default (in each case, with or without notice or lapse of time or both) where such breach or violation of, or default, has resulted in, or is reasonably likely to result in, a right of termination or other material remedy by any party thereto under, any Management Agreement, and none of Four Seasons or any of its subsidiaries or affiliates has received or given any notice of default under any Management Agreement which remains uncured and, to the date hereofknowledge of Four Seasons, all there exists no state of the Radiancy Business Contracts facts which after notice or lapse of time or both would constitute a default or breach of such Management Agreement. All Management Agreements are in full force and effect and are enforceable in accordance with their terms except without modification thereto (subject to the extent that such enforceability (i) may be limited by effects of bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors’ rights generally, and (ii) is subject to general principles of equity).
(iii) Except as set forth has not and would not, individually or in Section 3.15(cthe aggregate, reasonably be expected to have a Material Adverse Effect, (a) none of Four Seasons, its subsidiaries or, to the knowledge of Four Seasons, any of the Radiancy Disclosure Scheduleother parties thereto, as of the date hereof, no Radiancy Group member is in breach in any material respect of or violation of, or default under (and to PHMD’s Knowledgein each case, no event has occurred which with or without notice or lapse of time or both) under, any Contract (other than the passage Management Agreements) and none of Four Seasons or any of its subsidiaries has received or given any notice of default under any such Contract which remains uncured, and (b) to the knowledge of Four Seasons, there exists no state of facts which after notice or lapse of time or both would constitute a default or breach in any material respect of or default under) any Business a Material Contract nor, to PHMD’s Knowledge, is any (other Party to any such Business Contract in breach in any material respect of or default under such Business Contractthan a Management Agreement).
Appears in 2 contracts
Sources: Acquisition Agreement (Four Seasons Hotels Inc), Acquisition Agreement (Cascade Investment LLC)
Contracts. (i) Section 3.15(a) 4.14.1. Schedule 4.14.1 sets forth a true and complete list as of the Radiancy Disclosure Schedule sets forth an accurate list date of such schedule of each of the following Contracts to which any member of such Sale Company, or such Asset Seller with respect to the Radiancy Group engaged in the Radiancy Business Steering Business, is a Party party or by which any member of the Radiancy Group them is bound that is primarily used inbound, or otherwise necessary for, the operation of the Radiancy Business other than Seller Employee Benefit Plans (collectively, the “Radiancy Business Material Contracts”):
(i) each Contract A. Contracts (other than purchase orders for Inventoryorder Contracts) that involves performance of services involving the expenditure by the Sale Companies or delivery of goods or materials by any member the Asset Sellers in respect of the Radiancy Group engaged Steering Business of more than $500,000 in any instance for the purchase of materials, supplies, equipment or services, excluding any such contracts that are terminable by the Sale Companies or the Asset Sellers without penalty on not more than one hundred eighty (180) days notice;
B. Indentures, mortgages, loan agreements, capital leases, security agreements or other agreements for the incurrence of material Debt Obligations with respect to the Steering Business;
C. Guarantees of obligations (other than endorsements made for collection) involving the potential expenditure by the Sale Companies or the Asset Sellers in respect of the Steering Business after the date of this Agreement of more than $500,000 in any instance;
D. Contracts under which any Seller or the Sale Companies has licensed material Purchased Intellectual Property to, or material Licensed Intellectual Property from, any other Person with respect to the Steering Business;
E. Partnership, joint venture agreements or other agreements involving a sharing of profits or expenses by the Sale Companies or the relevant Asset Seller party thereto with respect to the Steering Business;
F. All Contracts containing any provision or covenant prohibiting or materially limiting the ability of any Sale Company to engage in any Business activity or in any region or compete with any Person with respect to the Steering Business;
G. All Contracts (other than purchase order Contracts with Affiliates) between the Sale Companies or Asset Sellers with respect to the Steering Business, on the one hand, and any Seller or its officers, directors or Affiliates (other than the Sale Companies or any of the Asset Sellers with respect to the Steering Business);
H. Contracts (other than purchase order Contracts) providing that a Sale Company or any Asset Seller in respect of the Steering Business will receive future payments aggregating more than $2,500,000 per annum or $10,000,000 in the Radiancy Business aggregate prior to the expiration of such Contract;
I. Collective Bargaining Agreements, works council agreements and similar agreements with any labor organization or employee representative with respect to the Steering Business;
J. All letters of credit, performance bonds and other similar items issued and outstanding in connection with the Steering Business; and
K. Agreements compromising, settling or resolving any material dispute affecting a Seller or a Sale Company pursuant to which, on or after the execution date of this Agreement, any Seller, with respect to a matter that would otherwise become an amount Assumed Liability, or value any Sale Company will be required to pay consideration valued in excess of $25,000;500,000 or to satisfy monitoring or reporting obligations to any Governmental Authority outside the Ordinary Course of Business with respect to the Steering Business.
4.14.2. As of the date of such schedule and with respect to the Steering Business, except as set forth in Schedule 4.14.2, and other than with respect to monetary defaults by Sellers under Material Contracts that are curable by payment of all Cure Amounts, if applicable, no event has occurred or would be reasonably likely to occur as of the date of such schedule that constitutes a material default (except with respect to defaults that need not be cured under Section 365 of the Bankruptcy Code for Sellers to assume and assign such Material Contracts to Buyers, if applicable) by: (i) any of the Sale Companies or any Asset Seller under any Material Contract; or (ii) each Contract (any other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials party to any member Material Contract. As of the Radiancy Group engaged in date of such schedule and with respect to the Radiancy Business of an amount or value in excess of $25,000;
(iii) each LeaseSteering Business, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting Schedule 4.14.2 identifies all Post Petition Contracts included within the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy GroupMaterial Contracts, other than indemnification provided to customers or vendors immaterial Post-Petition Contracts and open purchase orders entered into in the Ordinary Course of Business;.
4.14.3. The Sellers have made or will make available to the GM Buyers a true and correct copy of all written Contracts disclosed on Schedule 4.14.1 (x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements purchase orders and those subject to confidentiality provisions that do not include severance or “change of control” provisions; and
(xi) prohibit disclosure to third parties), in each amendmentcase together with all amendments, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium waivers or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equitychanges thereto.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contract.
Appears in 2 contracts
Sources: Master Disposition Agreement (Delphi Corp), Master Disposition Agreement (General Motors Co)
Contracts. (ia) Section 3.15(a3.12(a) of the Radiancy Disclosure Schedule sets forth an accurate a true, correct and complete list as of the date hereof of the following Contracts written contracts and the material terms and conditions of the following oral contracts which relate, in each case, primarily to, or were primarily entered into in connection with, the Business, to which any member Seller is a party, and which are Assumed Contracts (the “Material Contracts”) (other than the insurance policies set forth on Section 3.15 of the Radiancy Group engaged in Disclosure Schedule and the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”Employee Plans):
(i) each Contract all contracts (other than excluding work orders, purchase orders for Inventoryand credit applications submitted in the ordinary course of business) that involves performance of services individually involve annual payments to or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value from a Seller in excess of $25,000;
(ii) all contracts for the employment of any Business Employee or with respect to the equity compensation of any Business Employee, in each Contract case, that is not terminable at-will;
(iii) all Collective Agreements;
(iv) all contracts imposing a Lien (other than purchase orders a Permitted Lien) on any Transferred Asset;
(A) all leases relating to the Leased Real Property and all other leases or licenses involving any properties or assets (whether real, personal or mixed, tangible or intangible) involving an annual commitment or payment of more than $125,000 individually by a Seller, and any material oral leases to which any of the Sellers is a party (if any) relating to the Leased Real Property, and (B) all leases relating to rolling stock or material handling equipment (including forklifts);
(vi) all contracts that limit or restrict the Business from engaging in any business or activity in any jurisdiction;
(vii) all contracts that contain exclusivity obligations or restrictions binding on the Business such that the Business is prohibited from engaging in any business or activity whether alone or with third parties, whether before or after the applicable Closing, other than (A) any contracts or agreements with respect to Incubation Beverages (as defined in the Comprehensive Beverage Agreement) with any Seller or any of the Sellers’ Affiliates as long as such exclusivity obligations or restrictions are limited to the applicable Territory or (B) any contracts or agreements with respect to third-party licensed beverage brands that will terminate prior to the applicable Closing without survival of any such exclusivity obligation or restriction;
(viii) all contracts for Inventorycapital expenditures or the acquisition or construction of fixed assets, in each case, in excess of $25,000, whether individually or in the aggregate;
(ix) that involves performance of services or delivery of goods or materials all contracts granting to any member Person an option or a right of first refusal, right of first-offer or similar preferential right to purchase or acquire any Transferred Asset;
(x) all contracts that provide for an increased payment or benefit, or accelerated vesting, upon the Radiancy Group engaged execution of this Agreement or the applicable Closing or in connection with the transactions contemplated hereby;
(xi) all joint venture or partnership contracts, cooperative agreements and all other contracts providing for the sharing of any profits;
(xii) all contracts by which a Seller licenses the Transferred Licensed Intellectual Property, other than contracts for commercially available, off-the-shelf computer software with a replacement cost or aggregate annual license and maintenance fee of less than $20,000;
(xiii) all contracts that contain any “most favored nation” (or equivalent) provision in favor of any Customer;
(xiv) all contracts with a Governmental Authority other than contracts with educational institutions administered by a Governmental Authority, including all Tax incentive agreements or similar agreements with respect to the Business with any Governmental Authority;
(xv) all contracts not made in the Radiancy Business ordinary course of an amount business that individually involve annual payments to or value from a Seller in excess of $25,000;
(iiixvi) each Lease, rental all contracts that relate to the acquisition or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, disposition of any business or any leasehold material amount of stock, assets or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)real property;
(ivxvii) each Contract all contracts granting a Seller rights to distribute, promote, market or sell any beverage or beverage product in respect of Intellectual Property (the Territory, other than licenses for shrinkwrapcontracts regarding distribution, clickwrap promotion, marketing and sale of the beverages and beverage products described on Section 7.01(a)(iv) of the Disclosure Schedule, Section 7.02(a)(ii) of the Disclosure Schedule or other similar commercially available off-the-shelf software that has not been modified Section 7.03(a)(ii) of the Disclosure Schedule or customized by a third Party for the Radiancy Business)any contract with any Seller or any of its Affiliates;
(vxviii) each collective bargaining agreement and other Contract to or the Knowledge of the Sellers, all written contracts with any labor union Seller or other employee representative any Affiliate of a group of employees;
(vi) each joint ventureSeller granting a Seller rights to distribute, partnershippromote, and other Contract (however named) involving a sharing of profits, losses, costs, market or liabilities by sell any member of beverage or beverage product in the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, includingTerritory, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except only to the extent that such enforceability contracts will not be superseded by the Comprehensive Beverage Agreement; and
(xix) all other contracts and leases involving annual payments to or from a Seller in excess of $25,000 that are material to the Transferred Assets or to the operation of the Business.
(b) Section 3.12(b) of the Disclosure Schedule sets forth a true, correct and complete (i) list as of the date hereof of all Shared Contracts and (ii) list or general description as of the date hereof of any other goods or services that the Business receives or provides pursuant to any national or worldwide contract or agreement that relates to both the Business and the businesses retained by the Sellers and/or their Affiliates that will not be available to the Buyer after the applicable Closing on substantially the same terms as available to the Business prior to the applicable Closing.
(c) Each Material Contract, Shared Contract and Specified Non-Transferring Contract is a legal, valid and binding obligation of a Seller and, to the Knowledge of the Sellers, of each other party to such Material Contract, Shared Contract or Specified Non-Transferring Contract, as applicable, and each is enforceable against a Seller and, to the Knowledge of the Sellers, each such other party in accordance with its terms (except in each case as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally, including the effect of statutory and (ii) is other laws regarding fraudulent conveyances and preferential transfers, and subject to the limitations imposed by general equitable principles regardless of whether such enforceability is considered in a proceeding at law or in equity). None of the Sellers nor, to the Knowledge of the Sellers, any other party to a Material Contract, Shared Contract or Specified Non-Transferring Contract is in material default or material breach or has failed, or as of the applicable Closing will have failed, as applicable, to perform any material obligation under a Material Contract, Shared Contract or Specified Non-Transferring Contract, as applicable, and, to the Knowledge of the Sellers, there does not exist any event, condition or omission that would constitute such a material breach or material default (whether by lapse of time or notice or both). None of the Sellers has received any written notice of a proposed termination, cancellation or non-renewal with respect to any Material Contract, Shared Contract or Specified Non-Transferring Contract. It is understood that certain of the Material Contracts, Shared Contracts or Specified Non-Transferring Contracts may expire by their terms between the date of this Agreement and the applicable Closing Date, and no such expiration will be considered a breach of any of the representations set forth in this Section 3.12(c). Each Material Contract that requires the consent of or notice to the other party thereto to avoid any breach, default or violation of such Material Contract in connection with the transactions contemplated hereby has been identified on Section 3.12(a) of the Disclosure Schedule with an asterisk.
(iiid) Except as set forth in Section 3.15(c) As of the Radiancy Disclosure Scheduleapplicable Closing, each Pre-Closing Material Contract will be a legal, valid and binding obligation of a Seller and, to the Knowledge of the Sellers, of each other party to such Pre-Closing Material Contract, and, as of the applicable Closing, each will be enforceable against a Seller and, to the Knowledge of the Sellers, each such other party in accordance with its terms (except in each case as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally, including the effect of statutory and other laws regarding fraudulent conveyances and preferential transfers, and subject to the limitations imposed by general equitable principles regardless of whether such enforceability is considered in a proceeding at law or in equity). As of the applicable Closing, none of the Sellers nor, to the Knowledge of the Sellers, any other party to a Pre-Closing Material Contract will be in material default or material breach or will have failed to perform any material obligation under a Pre-Closing Material Contract and, to the Knowledge of the Sellers, as of the applicable Closing, there will not exist any event, condition or omission that would constitute such a material breach or material default (whether by lapse of time or notice or both). As of the applicable Closing, none of the Sellers will have received any written notice of a proposed termination, cancellation or non-renewal with respect to any Pre-Closing Material Contract.
(e) The Sellers have provided the Buyer with true, correct and complete copies of all Material Contracts and all portions of any Shared Contracts and Specified Non-Transferring Contracts that relate to the Business (together with such other portions thereof as are necessary to comprehend the terms thereof that apply to the Business) and all written modifications, amendments and supplements thereto and written waivers thereof, in each case, as of the date hereof. To the extent that, no Radiancy Group member is between the date hereof and the applicable Closing, the Sellers locate any contracts which would have been required to be disclosed in breach in any material respect response to Section 3.12(a)(xviii) if the Sellers had Knowledge of or default under (such contracts on the date hereof, then the Sellers will promptly provide true, correct and to PHMD’s Knowledge, no event has occurred which with notice or the passage complete copies of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contractcontracts to the Buyer.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Coca Cola Bottling Co Consolidated /De/), Asset Purchase Agreement (Coca Cola Bottling Co Consolidated /De/)
Contracts. (ia) Section 3.15(a3.12(a) of the Radiancy Disclosure Schedule sets forth an accurate a true, correct and complete list as of the date hereof of the following Contracts written contracts and the material terms and conditions of the following oral contracts which relate, in each case, primarily to, or were primarily entered into in connection with, the Business, to which any member Seller is a party, and which are Assumed Contracts (the “Material Contracts”) (other than the insurance policies set forth on Section 3.15 of the Radiancy Group engaged in Disclosure Schedule and the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”Employee Plans):
(i) each Contract all contracts (other than excluding work orders, purchase orders for Inventoryand credit applications submitted in the ordinary course of business) that involves performance of services individually involve annual payments to or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value from a Seller in excess of $25,000;
(ii) all contracts for the employment of any Business Employee or with respect to the equity compensation of any Business Employee, in each Contract case, that is not terminable at-will;
(iii) all Collective Agreements;
(iv) all contracts imposing a Lien (other than purchase orders a Permitted Lien) on any Transferred Asset;
(A) all leases relating to the Leased Real Property and all other leases or licenses involving any properties or assets (whether real, personal or mixed, tangible or intangible) involving an annual commitment or payment of more than $125,000 individually by a Seller, and any material oral leases to which any of the Sellers is a party (if any) relating to the Leased Real Property, and (B) all leases relating to rolling stock or material handling equipment (including forklifts);
(vi) all contracts that limit or restrict the Business from engaging in any business or activity in any jurisdiction;
(vii) all contracts that contain exclusivity obligations or restrictions binding on the Business such that the Business is prohibited from engaging in any business or activity whether alone or with third parties, whether before or after the Closing, other than (A) any contracts or agreements with respect to Incubation Beverages (as defined in the Comprehensive Beverage Agreement) with any Seller or any of the Sellers’ Affiliates as long as such exclusivity obligations or restrictions are limited to the Facility or (B) any contracts or agreements with respect to third-party licensed beverage brands that will terminate prior to the Closing without survival of any such exclusivity obligation or restriction;
(viii) all contracts for Inventorycapital expenditures or the acquisition or construction of fixed assets, in each case, in excess of $25,000, whether individually or in the aggregate;
(ix) that involves performance of services or delivery of goods or materials all contracts granting to any member Person an option or a right of first refusal, right of first-offer or similar preferential right to purchase or acquire any Transferred Asset;
(x) all contracts that provide for an increased payment or benefit, or accelerated vesting, upon the Radiancy Group engaged execution of this Agreement or the Closing or in connection with the transactions contemplated hereby;
(xi) all joint venture or partnership contracts, cooperative agreements and all other contracts providing for the sharing of any profits;
(xii) all contracts by which a Seller licenses the Transferred Licensed Intellectual Property, other than contracts for commercially available, off-the-shelf computer software with a replacement cost or aggregate annual license and maintenance fee of less than $20,000;
(xiii) all contracts that contain any “most favored nation” (or equivalent) provision in favor of any Customer;
(xiv) all contracts not made in the Radiancy Business ordinary course of an amount business that individually involve annual payments to or value from a Seller in excess of $25,000;
(iiixv) each Lease, rental all contracts that relate to the acquisition or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, disposition of any business or any leasehold material amount of stock, assets or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)real property;
(ivxvi) each Contract in respect of Intellectual Property (all contracts granting a Seller rights to manufacture or produce any beverage or beverage product at the Facility, other than licenses for shrinkwrap, clickwrap contracts regarding manufacturing or other similar commercially available off-the-shelf software that has not been modified production of the beverages and beverage products described on Section 7.01(d) of the Disclosure Schedule or customized by a third Party for the Radiancy Business)any contract with any Seller or any of its Affiliates;
(vxvii) each collective bargaining agreement and other Contract to or the Knowledge of the Sellers, all written contracts with any labor union Seller or other employee representative any Affiliate of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving Seller granting a sharing of profits, losses, costs, Seller rights to manufacture or liabilities by produce any member of beverage or beverage product at the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, includingFacility, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except only to the extent that such enforceability contracts will not be superseded by the Comprehensive Beverage Agreement or the Manufacturing Agreement; and
(xviii) all other contracts and leases involving annual payments to or from a Seller in excess of $25,000 that are material to the Transferred Assets or to the operation of the Business.
(b) Section 3.12(b) of the Disclosure Schedule sets forth a true, correct and complete (i) list as of the date hereof of all Shared Contracts and (ii) list or general description as of the date hereof of any other goods or services that the Business receives or provides pursuant to any national or worldwide contract or agreement that relates to both the Business and the businesses retained by the Sellers and/or their Affiliates that will not be available to the Buyer after the Closing on substantially the same terms as available to the Business prior to the Closing.
(c) Each Material Contract, Shared Contract and Specified Non-Transferring Contract is a legal, valid and binding obligation of a Seller and, to the Knowledge of the Sellers, of each other party to such Material Contract, Shared Contract or Specified Non-Transferring Contract, as applicable, and each is enforceable against a Seller and, to the Knowledge of the Sellers, each such other party in accordance with its terms (except in each case as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally, including the effect of statutory and (ii) is other laws regarding fraudulent conveyances and preferential transfers, and subject to the limitations imposed by general equitable principles regardless of whether such enforceability is considered in a proceeding at law or in equity). None of the Sellers nor, to the Knowledge of the Sellers, any other party to a Material Contract, Shared Contract or Specified Non-Transferring Contract is in material default or material breach or has failed, or as of the Closing will have failed, as applicable, to perform any material obligation under a Material Contract, Shared Contract or Specified Non-Transferring Contract, as applicable, and, to the Knowledge of the Sellers, there does not exist any event, condition or omission that would constitute such a material breach or material default (whether by lapse of time or notice or both). None of the Sellers has received any written notice of a proposed termination, cancellation or non-renewal with respect to any Material Contract, Shared Contract or Specified Non-Transferring Contract. It is understood that certain of the Material Contracts, Shared Contracts or Specified Non-Transferring Contracts may expire by their terms between the date of this Agreement and the Closing Date, and no such expiration will be considered a breach of any of the representations set forth in this Section 3.12(c). Each Material Contract that requires the consent of or notice to the other party thereto to avoid any breach, default or violation of such Material Contract in connection with the transactions contemplated hereby has been identified on Section 3.12(a) of the Disclosure Schedule with an asterisk.
(iiid) Except as set forth in Section 3.15(c) As of the Radiancy Disclosure ScheduleClosing, each Pre-Closing Material Contract will be a legal, valid and binding obligation of a Seller and, to the Knowledge of the Sellers, of each other party to such Pre-Closing Material Contract, and, as of the Closing, each will be enforceable against a Seller and, to the Knowledge of the Sellers, each such other party in accordance with its terms (except in each case as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally, including the effect of statutory and other laws regarding fraudulent conveyances and preferential transfers, and subject to the limitations imposed by general equitable principles regardless of whether such enforceability is considered in a proceeding at law or in equity). As of the Closing, none of the Sellers nor, to the Knowledge of the Sellers, any other party to a Pre-Closing Material Contract will be in material default or material breach or will have failed to perform any material obligation under a Pre-Closing Material Contract and, to the Knowledge of the Sellers, as of the Closing, there will not exist any event, condition or omission that would constitute such a material breach or material default (whether by lapse of time or notice or both). As of the Closing, none of the Sellers will have received any written notice of a proposed termination, cancellation or non-renewal with respect to any Pre-Closing Material Contract.
(e) The Sellers have provided the Buyer with true, correct and complete copies of all Material Contracts and all portions of any Shared Contracts and Specified Non-Transferring Contracts that relate to the Business (together with such other portions thereof as are necessary to comprehend the terms thereof that apply to the Business) and all written modifications, amendments and supplements thereto and written waivers thereof, in each case, as of the date hereof. To the extent that, no Radiancy Group member is between the date hereof and the Closing, the Sellers locate any contracts which would have been required to be disclosed in breach in any material respect response to Section 3.12(a)(xvii) if the Sellers had Knowledge of or default under (such contracts on the date hereof, then the Sellers will promptly provide true, correct and to PHMD’s Knowledge, no event has occurred which with notice or the passage complete copies of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contractcontracts to the Buyer.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Coca Cola Bottling Co Consolidated /De/)
Contracts. (ia) Section 3.15(a4.11(a) of the Radiancy Seller’s Disclosure Schedule sets forth an a complete and accurate list of all of the following Contracts to which the Company or any member of the Radiancy Group engaged in the Radiancy Business its Subsidiaries is a Party party or by which the Company or any member of its Subsidiaries or any of its or their assets are subject:
(i) Contracts for the Radiancy Group is bound purchase or lease of materials, supplies, goods, services, equipment or other assets requiring aggregate payments in excess of $100,000;
(ii) Contracts for the sale by the Company or any of its Subsidiaries of materials, supplies, goods, services, equipment or other assets (other than coal) having a value in excess of $50,000;
(iii) Contracts requiring the Company or any of its Subsidiaries to purchase its total requirements of any product or service from a Third Party or that is primarily used incontain “take or pay” or other minimum purchase requirements provisions;
(iv) Contracts for the purchase, sale or otherwise necessary for, the operation transport of the Radiancy Business coal (collectively, the “Radiancy Business ContractsCoal Supply Agreements”):
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or Contracts with any labor union or other employee representative coal brokers for the sale of a group of employeescoal;
(vi) each joint venture, partnership, Contracts to supply or provide contract mining services and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other PersonContracts with coal mine operators or their Affiliates, directors, managers, officers, stockholders or partners;
(vii) any agreement relating to indebtedness for borrowed money partnership, joint venture or extensions of creditsimilar Contracts;
(viii) each Contract employment, severance, stay, bonus, termination, change in control, consulting or similar Contracts;
(ix) Contracts containing covenants that not to compete or other covenants restricting or purporting to restrict the business activity right of the Company or any of its Subsidiaries or Affiliates to engage in any line of business, acquire any property, develop or distribute any product, provide any service (including geographic restrictions) or to compete with any Person, or granting any exclusive distribution rights, in any market, field or territory;
(x) Contracts with the Seller or any Affiliate of the Seller, the Company or any of its Subsidiaries, other than Coal Supply Agreements;
(xi) Notes, debentures, bonds, equipment trusts, letters of credit, loans or other Contracts for or evidencing Indebtedness or the lending of money including Bonds;
(xii) Contracts (including keepwell agreements) under which (A) any Person has directly or indirectly guaranteed Indebtedness or other Liabilities of the Company or any of its Subsidiaries or (B) the Company or any of its Subsidiaries has directly or indirectly guaranteed Indebtedness or other Liabilities of any member Third Party (in each case other than endorsements for the purpose of collection in the ordinary course of business consistent with past practice);
(xiii) Contracts under which the Company or any of its Subsidiaries has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Third Party;
(xiv) Contracts under which there is a continuing obligation to pay any “earn out” payment or deferred or contingent purchase price or any similar payment respecting the purchase of any business or assets;
(xv) Contracts that are material to the conduct of the Radiancy Groupbusiness of the Company or its Subsidiaries as currently conducted (i) under which any Company Intellectual Property is licensed to any Third Party, or (ii) that constitute Intellectual Property licensed by the Company or its Subsidiaries (excluding generally-commercially‑available off‑the‑shelf software programs that in each case has incurred license fees of less than $2,500), identifying in each case whether such license is exclusive or non‑exclusive;
(xvi) Contracts with any Governmental Entity with a value in excess of $50,000, other than Permits;
(xvii) Contracts other than the Leases, the Contractor Mining Agreements or the Lafayette Agreements which require payment by the Company or its Subsidiaries of any royalties; and
(xviii) Contracts that are otherwise material to the Mining Operations and not previously disclosed pursuant to this Section 4.11. The Contracts required to be listed on Section 4.11(a) of the Seller’s Disclosure Schedule are collectively referred to herein as the “Company Contracts.” The Seller has made available complete and accurate copies of each Company Contract (including all material amendments, modifications, extensions and renewals thereof and related notices relating thereto) to the Purchaser.
(b) Except as set forth on Section 4.11(b) of the Seller’s Disclosure Schedule, (i) each Company Contract is in full force and effect and valid and enforceable in accordance with its terms, (ii) each of the Company and its Subsidiaries and, to the Knowledge of the Seller, all other parties thereto have complied with and are in compliance with the provisions of each Company Contract in all material respects, (iii) neither the Company nor any of its Subsidiaries is, nor to the Knowledge of the Seller, any other party thereto is, in material default in the performance, observance or fulfillment of any obligation, covenant, condition or other term contained in any Company Contract, and neither the Company nor any of its Subsidiaries has given or received notice to or from any Person relating to any such alleged or potential default that has not been cured, and (iv) the Company Contracts are all of the Contracts that are material to or necessary for the conduct of the Company’s and its Subsidiaries’ businesses or the Mining Operations.
(c) Except as disclosed in Section 4.11(c) of the Seller’s Disclosure Schedule:
(i) neither the Company nor any of its Subsidiaries has received written notice from any party to a Coal Supply Agreement threatening to suspend shipments under such Coal Supply Agreement due to an alleged breach by the Company or any of its Subsidiaries of such Coal Supply Agreement;
(ii) there have been no whole or partial assignments or other transfers of any of the Coal Supply Agreements or of any interest therein by the Company or any of its Subsidiaries;
(iii) none of the parties to any of the Coal Supply Agreements has made any written claim to the Company or any of its Subsidiaries, either by contractually-required notice or otherwise, of the existence of any force majeure events, which materially affect or could materially affect future deliveries under such Coal Supply Agreement;
(iv) no written claims have been made or, to the Knowledge of the Seller, threatened under any economic hardship or similar provisions of any of the Coal Supply Agreements;
(v) there have been no written demands by any of the parties to any of the Coal Supply Agreements for adequate assurance of performance, whether made pursuant to the terms of the Coal Supply Agreements or pursuant to statutory or common law;
(vi) there are no pending or, to the Knowledge of the Seller, threatened material pricing disputes under the Coal Supply Agreements;
(vii) no party to any of the Coal Supply Agreements has currently suspended or, to the Knowledge of the Seller, threatened to suspend its performance of the terms and conditions of the applicable Coal Supply Agreement either under the terms of such Coal Supply Agreement or otherwise;
(viii) none of the customers or sellers under any of the Coal Supply Agreements has sought to renegotiate, alter or terminate any of the terms of the Coal Supply Agreements by any means, including, but not limited to, any exclusivity covenantslitigation, or limit arbitration, renegotiation under the freedom of any member terms of the Radiancy Group to engage in any line Coal Supply Agreements or renegotiation outside of business or to compete with any Person;the terms of the Coal Supply Agreements; and
(ix) any agreement providing for indemnification by any member of neither the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of Company nor any of its Subsidiaries is obligated to deliver any quantities of coal under any Coal Supply Agreement, the foregoingconsideration for which has been pre-paid.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Vectren Corp), Stock Purchase Agreement (Vectren Corp)
Contracts. (ia) Section 3.15(a4.11(a) of the Radiancy Vertical/Trigen Disclosure Schedule sets forth an accurate list forth, as of the date hereof, each of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business Vertical/Trigen Company is a Party or by which party: any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):Contract,
(i) each Contract (other than purchase orders for Inventory) that involves the performance of services or delivery which is reasonably expected to involve annual payments on the part of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value Vertical/Trigen Company in excess of $25,0001,000,000 and is not terminable by such Vertical/Trigen Company on 90 days’ notice or less without premium or penalty (excluding sales orders and purchase orders issued in the ordinary course of business);
(ii) each Contract (with respect to a joint venture, partnership, distributor, reseller or other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000similar agreement;
(iii) each Lease, rental which limits or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting purports to limit the ownership of, leasing of, title to, use of, or ability of any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating Vertical/Trigen Companies to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage compete in any line of business or to compete with any Personperson or in any geographic area or during any period of time or requires that any of the Vertical/Trigen Companies provide “most favored status,” “favored pricing” (or similar terms) to any customer or other person;
(iv) that grants a Lien (other than a Vertical/Trigen Permitted Lien or a Lien that will be released as of the Closing) on any material asset of any of the Vertical/Trigen Companies;
(v) that is a lease of real property;
(vi) that provides for the acquisition of any person or any business unit thereof or the sale of any material asset (excluding inventory) of any of the Vertical/Trigen Companies outside the ordinary course of business;
(vii) under which (A) any person directly or indirectly guarantees any liabilities or obligations of any of the Vertical/Trigen Companies, (B) any of the Vertical/Trigen Companies guarantees any liabilities or obligations of any other person or (C) any of the Vertical/Trigen Companies incurs indebtedness having an outstanding principal amount (or aggregate commitments) in excess of $1,000,000;
(viii) that provides for the manufacture of Vertical/Trigen Products (or any part thereof) for any of the Vertical/Trigen Companies;
(ix) that is an employment Contract for any agreement providing for indemnification by any member current employee and is reasonably expected to involve payments of the Radiancy Group, other more than indemnification provided to customers or vendors $150,000 in the Ordinary Course of Businesstotal compensation in 2015;
(x) any employment or that is a consulting Contract with for any Business Employee, or any consultant or contractor current Contractor and is reasonably expected to involve payments of the Radiancy Business, other more than at-will arrangements that do not include severance or “change of control” provisions; and$150,000 in total compensation per year;
(xi) each amendment, supplement, under which the Vertical/Trigen Companies are providing products or services to customers (other than distributors and modification resellers) and for which the purchase of products or services from the Vertical/Trigen Companies for the twelve month period following the date hereof is reasonably expected to exceed $500,000;
(whether oral or writtenxii) in respect of under which any of the foregoing.Vertical/Trigen Companies is (A) a lessee or sublessee of tangible personal property, or (B) a lessor of any tangible personal property owned by the Vertical/Trigen Companies, in any single lease under (A) or (B) having an original value in excess of $500,000; or
(iixiii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice for capital expenditures or the passage acquisition or construction of time or both would constitute a breach fixed assets in any material respect excess of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contract$500,000.
Appears in 2 contracts
Sources: Business Combination Agreement (Osmotica Pharmaceuticals PLC), Business Combination Agreement (Osmotica Pharmaceuticals LTD)
Contracts. (ia) Section 3.15(aExcept as set forth on Schedule 3.11, LTC is neither a party to, nor bound by, any material lease, agreement, contract, commitment or other legally binding contractual right or obligation (whether written or oral) of the Radiancy Disclosure Schedule sets forth an accurate list of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business a type described below (collectively, the “Radiancy Business "Contracts”"):
(i) each Contract any lease (other than purchase orders for Inventory) that involves performance whether of services real or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000personal property);
(ii) each Contract (any agreement for the purchase of materials, supplies, goods, services, equipment or other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000assets;
(iii) each Leaseany sales, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold distribution or other interest insimilar agreement providing for the sale by LTC of materials, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)supplies, goods, services, equipment or other assets;
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrapany partnership, clickwrap joint venture or other similar commercially available off-the-shelf software that has not been modified agreement or customized by a third Party for the Radiancy Business)arrangement;
(v) each collective bargaining agreement and other any Contract pursuant to which any third party has rights to own or with use any labor union or other employee representative material asset of a group LTC, including, without limitation, any Intellectual Property Right of employeesLTC;
(vi) each joint ventureany agreement relating to the acquisition or disposition of any business (whether by merger, partnershipsale of stock, and sale of assets or otherwise) or granting to any Person a right of first refusal, first offer or other Contract (however named) involving a sharing right to purchase any of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other PersonLTC's assets;
(vii) any agreement relating to indebtedness for borrowed money Indebtedness (in any case, whether incurred, assumed, guaranteed or extensions of creditsecured by any asset);
(viii) each any license, franchise or similar agreement;
(ix) any agency, dealer, sales representative, marketing or other similar agreement;
(x) any Contract containing covenants that restrict the business activity may not be terminated by LTC without payment of penalty or on 90 days' or less prior notice;
(xi) any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit agreement that limits the freedom of any member of the Radiancy Group LTC to engage compete in any line of business business, geographic area or to compete with any Person;
(ixxii) any agreement providing for indemnification by with (A) any stockholder of LTC or any other Affiliate of LTC, or (B) any director or officer of LTC or with any "associate" or any member of the Radiancy Group"immediate family" (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the Exchange Act) of any such director or officer;
(xiii) any management service, consulting or any other than indemnification provided similar type of agreement;
(xiv) any warranty, guaranty or other similar undertaking with respect to customers any product or vendors contractual performance (or LTC's standard forms of any of the foregoing) or agreement to indemnify any Person;
(xv) any employment, deferred compensation, severance, bonus, retirement or other similar agreement or plan in effect as of the date hereof entered into or adopted by LTC;
(xvi) any other agreement, commitment, arrangement or plan not made in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements LTC that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoingis material to LTC.
(iib) Except as set forth Each Contract disclosed in Section 3.15(b) or required to be disclosed in Schedule 3.11 is a valid and binding agreement of LTC and, to the Radiancy Disclosure Scheduleknowledge of LTC, as of the date hereofeach other party thereto, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms its respective terms, except to the extent that such its enforceability (i) may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or other and similar laws relating affecting the enforcement of creditors' rights generally and by general equitable principles. Neither LTC nor, to creditors’ rights generallythe knowledge of LTC, and (ii) is subject any other party to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member any such Contract is in default or breach (with or without due notice or lapse of time or both) in any material respect under the terms of any such Contract. To the knowledge of LTC, there is no event, occurrence, condition or default under (and to PHMD’s Knowledgeact which, no event has occurred which with the giving of notice or the passage of time or both would constitute a breach in any material respect both, or the happening of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party event or condition, would reasonably be expected to become a material default or breach or event of default under any such Business Contract in breach in any material respect of or default under such Business Contract.
Appears in 2 contracts
Sources: Agreement (Lithium Technology Corp), Agreement (Lithium Technology Corp)
Contracts. (i) Section 3.15(a) 3.18 of the Radiancy Seller’s Disclosure Schedule sets forth an accurate list of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is Letter contains a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedulelist, as of the date hereof, of all Contracts (other than Employee Benefit Plans and other than any Material Contracts that are Excluded Assets) related to the FH Business to which Seller or any of its Affiliates is a party or by which any of their respective assets is bound, and that fall within any of the Radiancy following categories (the “Material Contracts”):
(a) each Contract with a Key Customer (other than (i) any such contract which is terminable by a Transferred FH Company, a Closing Subsidiary of a Transferred FH Company or an FH Affiliate (in respect of the FH Business), as applicable, without material liability, penalty or premium on 90 or fewer days’ notice and (ii) purchase orders, sales orders, rebate agreements or invoices under such contracts entered into in the ordinary course of business);
(b) each Contract with a Key Supplier (other than (i) any such contract which is terminable by a Transferred FH Company, Closing Subsidiary of a Transferred FH Company or FH Affiliate (in respect of the FH Business), as applicable, without material liability, penalty or premium on 90 or fewer days’ notice and (ii) purchase orders, sales orders, rebate agreements or invoices under such contracts entered into in the ordinary course of business);
(c) each Contract which limits the ability, in any material respect, of (i) a Transferred FH Company or any of its Closing Subsidiaries or an FH Affiliate (in respect of the FH Business) to compete with any Person generally or in any geographic area in which any Transferred FH Company or any Closing Subsidiary thereof or an FH Affiliate (in respect of the FH Business) conducts the FH Business, or (ii) a Transferred FH Company or any of its Closing Subsidiaries or any FH Affiliate (in respect of the FH Business) from entering into any line of business, or from freely providing services or supplying products to any customer or potential customer, or in any part of the world;
(d) each material Transferred IP Contract, other than non-disclosure agreements, employee invention assignments, customer end user agreements, “clickwrap”, “shrinkwrap,” open source or similar Contracts for generally commercially available computer software, firmware or data, and similar agreements entered into in the ordinary course of business with annual license fees of less than $100,000;
(e) each Contract that would reasonably be expected to result in payments to or from a Transferred FH Company or any of its Closing Subsidiaries or an FH Affiliate (in respect of the FH Business) in excess of $2,000,000 (or the equivalent value in the applicable currency) over any consecutive 12-month period including the date hereof;
(f) each (A) consulting agreement (other than those that are terminable on no more than thirty (30) days’ prior notice and that provide for a termination fee of less than $50,000), (B) change of control, retention or severance agreement or arrangement or (C) employment agreement, in the case of each of clauses (A) and (C), which (x) provides for mandatory annual cash compensation in excess of $200,000 or (y) includes any bonus or other amount payable in connection with the transactions contemplated hereby;
(g) each Contract for the disposition of FH Assets in excess of $1,000,000 over any consecutive 12-month period including the date hereof (other than sales of products in the ordinary course of business) or for the acquisition of the assets or business of any other Person in excess of $1,000,000 over any consecutive 12-month period including the date hereof (other than purchases of inventory or components in the ordinary course of business);
(h) each contract in which Seller or any of its Affiliates has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase a minimum quantity of goods or services in excess of $1,000,000 or has agreed to purchase goods or services exclusively from a specified person (or group of persons);
(i) each Contract concerning the establishment or operation of a partnership, joint venture or similar enterprise;
(j) each Government Contract (other than purchase orders, sales orders, rebate agreements or invoices under such contracts entered into in the ordinary course of business);
(k) any settlement agreement or settlement-related agreement that contains material ongoing restrictions on the operation of the FH Business Contracts are (including any agreement in connection with which any employment-related claim is settled);
(l) any agency, distributor, sales representative, franchise or similar agreements with an agent, distributor, sales representative, franchisor or similar service provider outside of the United States that cannot be terminated by the applicable Transferred FH Company, Closing Subsidiary or FH Affiliate on less than 90 days’ notice without material Liability to such Person;
(m) each Contract (other than any Contract included in the Acquired FH Assets) that, following the Closing, would (or would purport to) entitle any third party to receive a license or any other right to Intellectual Property of Buyer or any of Buyer’s Affiliates (other than the Transferred FH Companies and the Closing Subsidiaries) following the Closing or otherwise would bind or purport to bind Buyer or any of Buyer’s Affiliates (other than any Transferred FH Company or any of its Closing Subsidiaries); and
(n) each letter of credit, bank guarantee, performance bond or similar instrument, in each case, in any amount in excess of $100,000 individually, issued for the benefit of any Transferred FH Company or Closing Subsidiary. Each such Material Contract is legal, valid, binding and enforceable against Seller or its Affiliate, as applicable, and, to the Knowledge of Seller, the other parties thereto in accordance with its terms, in each case, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles, and is in full force and effect, except where such failure to be so valid, binding, enforceable or in full force and effect and are enforceable would not, individually or in accordance with their terms except the aggregate, reasonably be expected to be material to the extent that such enforceability (i) may be limited by bankruptcyFH Business, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles taken as a whole. Neither Seller nor any of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member its Affiliates is in breach in any material respect of or default under (and or in breach of any such Material Contract except for such defaults or breaches as would not have, individually or in the aggregate, reasonably be expected to PHMD’s Knowledgebe material to the FH Business, taken as a whole. To the Knowledge of Seller, no event has occurred which which, after the giving of notice, with notice lapse of time, or the passage of time or both otherwise, would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of default or default under such Business Contractbreach.
Appears in 2 contracts
Sources: Purchase Agreement (Circor International Inc), Purchase Agreement (Colfax CORP)
Contracts. (i) Section 3.15(a2.1(n)(i) of the Radiancy Seller Disclosure Schedule sets Letter lists all Material Contracts of Seller and each Seller Subsidiary relating to the Portfolio. Except as set forth an accurate list on Section 2.1(n)(i) of the following Contracts to which any member of the Radiancy Group engaged Seller Disclosure Letter or in the Radiancy Business Seller SEC Documents, each Material Contract is a Party or by which any member valid, binding and enforceable and in full force and effect. For purposes of this Agreement, with respect to Seller and each Seller Subsidiary, "Material Contracts" shall mean, to the Radiancy Group is bound that is primarily used inextent relating to the Portfolio, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):
(i) each Contract (any loan or credit agreement, indenture, note, bond, debenture or any other document or agreement evidencing a capitalized lease obligation or other Indebtedness to any Person, including any such Indebtedness that may be incurred pursuant to an agreement already executed, other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged Indebtedness in a principal amount less than $225,000 in the Radiancy Business aggregate, (ii) each ground lease (under which Seller or a Seller Subsidiary is lessee), (iii) each material commitment, contractual obligation, borrowing, capital expenditure, agreement to acquire real property, or transaction entered into by Seller or any Seller Subsidiary which may result in total payments by or liability of an amount Seller or value any Seller Subsidiary in excess of $25,000;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Lease225,000, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect any other agreements filed or required to be filed as exhibits to the Seller SEC Documents pursuant to Item 601(b)(10) of Intellectual Property (other than licenses for shrinkwrapRegulation S-K of Title 17, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for Part 229 of the Radiancy Business);
Code of Federal Regulations, (v) each collective bargaining agreement all contracts or arrangements between Seller or any Seller Subsidiary, on the one hand, and any director, officer, employee, equityholder or affiliate of Seller (or any of their respective affiliates), on the other Contract to or with any labor union or other employee representative of a group of employees;
hand, (vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, all change in control or liabilities by any member of the Radiancy Group with any other Person;
similar agreements or (vii) any agreement relating all other contracts and agreements that are material to indebtedness for borrowed money Seller and the Seller Subsidiaries, taken as a whole, or extensions the conduct of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of Seller and the Radiancy GroupSeller Subsidiaries, including, but not limited to, any exclusivity covenantstaken as a whole, or limit the freedom absence of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Groupwhich would, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employeeaggregate, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoinghave a Portfolio Material Adverse Effect.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contract.
Appears in 2 contracts
Sources: Transaction Agreement (Affordable Residential Communities Inc), Transaction Agreement (Chateau Communities Inc)
Contracts. (ia) Section 3.15(a) 3.29 of the Radiancy Mercer Disclosure Schedule sets set forth an accurate a list of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used ineach Contract, or otherwise necessary forother than this Agreement, the operation of the Radiancy Business (collectively, the “Radiancy Business Mercer Contracts”):) to which Mercer or any of the Mercer Subsidiaries is a party or by which it is bound which:
(i) each Contract is a “material contract” (other than purchase orders for Inventoryas such term is defined in Item 601(b)(10) that involves performance of services or delivery of goods or materials by any member of Regulation S-K under the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000Exchange Act);
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value contains obligations in excess of $25,000100,000 or is otherwise material to the current business, assets, liabilities, financial condition or results of operations of Mercer or any Mercer Subsidiary, taken as a whole;
(iii) each Lease, rental contains covenants limiting or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract purporting to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of Mercer or any member of the Radiancy Group Mercer Subsidiaries to engage in any line of business in any geographic area or to compete with any Person or restricting or purporting to restrict the ability of Mercer or any of its Affiliates (including Buyer or any of its Subsidiaries following the Merger) to acquire equity securities of any Person;
(iv) (A) obligates Mercer or any Mercer Subsidiaries or will obligate Buyer or any of its Subsidiaries following the Merger, in each case, to extend most-favored nation pricing to any Person, (B) imposes exclusivity obligations on Mercer or any Mercer Subsidiary or that will impose exclusivity obligations on Buyer or any of its Subsidiaries following the Merger, in each case, with respect to customers or suppliers, or (C) imposes obligations on Mercer or any Mercer Subsidiary or will impose obligations on Buyer or any of its Subsidiaries following the Merger, in each case, with respect to non-solicitation provisions with respect to customers or suppliers;
(v) relates to or contains provisions or covenants that obligate or upon the occurrence of a condition precedent will obligate Mercer or any of the Mercer Subsidiaries to guarantee indebtedness for borrowed money;
(vi) is a guaranty or contains provisions or covenants relating to indemnification or holding harmless by Mercer or any of the Mercer Subsidiaries;
(vii) relates to the acquisition or disposition of any business (whether by merger, sale or purchase of stock or assets or otherwise) and contains obligations (financial or performance) that have not been terminated or lapsed;
(viii) relates to any settlement that materially affects the conduct of ▇▇▇▇▇▇’▇ or any Mercer Subsidiary’s businesses;
(ix) is an employment (other than an employment “at will”), severance, retention, incentive or similar contract applicable to any agreement providing for indemnification by employee of Mercer or any member of the Radiancy GroupMercer Subsidiaries, including contracts to employ executive officers and other contracts with officers or directors of Mercer or any of the Mercer Subsidiaries, other than indemnification provided to customers or vendors in the Ordinary Course of Businessagent contracts with insurance agents;
(x) any employment or consulting Contract with to provide the source code for any software included within the Owned Business Employee, or Intellectual Property to any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisionsthird party; andor
(xi) any Contract, other than standard end-user license and sale Contracts (including “shrink-wrap” or “click-through” license agreements) and related maintenance and support Contracts entered into in the ordinary course of business, that (A) grants to any third party a license to use, modify, improve or reproduce any product, service or Intellectual Property of Mercer or any Mercer Subsidiary, or (B) grants to Mercer or any Mercer Subsidiary a license to use, modify, improve or reproduce any product, service or Intellectual Property of a third party.
(b) With respect to each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.Mercer Contracts:
(i) a complete and accurate copy of such contract has previously been made available to Buyer;
(ii) Except as set forth in Section 3.15(bsuch contract is (assuming due power and authority of, and due execution and delivery by, the other party or parties thereto) valid and binding upon Mercer, each Mercer Subsidiary that is a party thereto and, to the Knowledge of the Radiancy Disclosure ScheduleMercer, as of the date hereof, all of the Radiancy Business Contracts are each other party thereto and is in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.effect;
(iii) Except as set forth in Section 3.15(c) there is no material default or claim of material default thereunder by Mercer, any Mercer Subsidiary that is a party thereto or, to the Radiancy Disclosure ScheduleKnowledge of Mercer, as of the date hereofby any other party thereto, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which that, with notice or the passage of time or both the giving of notice (or both), would constitute a breach in material default thereunder by Mercer, any material respect of or default under) any Business Contract norMercer Subsidiary that is a party thereto or, to PHMD’s Knowledgethe Knowledge of Mercer, is by any other Party party thereto, or would permit material modification, acceleration or termination thereof;
(iv) to the Knowledge of Mercer, no Person is challenging the validity or enforceability of any Mercer Contract, except such Business Contract challenges which would not, individually or in breach in the aggregate, have a Material Adverse Effect; and
(v) the consummation of the Contemplated Transactions will not give rise to a right of the other party or parties thereto to terminate or amend the terms of such contract or impose liability under the terms thereof on Mercer or any material respect of or default under such Business Contractthe Mercer Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (United Fire & Casualty Co), Merger Agreement (Mercer Insurance Group Inc)
Contracts. (ia) Section 3.15(a3.12(a) of the Radiancy Disclosure Schedule sets forth an accurate a true, correct and complete list as of the date hereof of the following Contracts written contracts and the material terms and conditions of the following oral contracts which relate, in each case, primarily to, or were primarily entered into in connection with, the Business, to which any member Seller is a party, and which are Assumed Contracts (the “Material Contracts”) (other than the insurance policies set forth on Section 3.15 of the Radiancy Group engaged in Disclosure Schedule and the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”Employee Plans):
(i) each Contract all contracts (other than excluding work orders, purchase orders for Inventoryand credit applications submitted in the ordinary course of business) that involves performance of services individually involve annual payments to or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value from a Seller in excess of $25,000;
(ii) all contracts for the employment of any Business Employee or with respect to the equity compensation of any Business Employee, in each Contract case, that is not terminable at-will;
(iii) all Collective Agreements;
(iv) all contracts imposing a Lien (other than a Permitted Lien) on any Transferred Asset;
(A) all leases relating to the Leased Real Property and all other leases or licenses involving any properties or assets (whether real, personal or mixed, tangible or intangible) involving an annual commitment or payment of more than $125,000 individually by a Seller, and any material oral leases to which any of the Sellers is a party (if any) relating to the Leased Real Property, and (B) all leases relating to rolling stock or material handling equipment (including forklifts);
(vi) all contracts that limit or restrict the Business from engaging in any business or activity in any jurisdiction;
(vii) all contracts that contain exclusivity obligations or restrictions binding on the Business such that the Business is prohibited from engaging in any business or activity whether alone or with third parties, whether before or after the Closing, other than (A) any contracts or agreements with respect to Incubation Beverages (as defined in the Comprehensive Beverage Agreement) with any Seller or any of the Sellers’ Affiliates as long as such exclusivity obligations or restrictions are limited to the Territory or (B) any contracts or agreements with respect to third-party licensed beverage brands that will terminate prior to the Closing without survival of any such exclusivity obligation or restriction;
(viii) all contracts for capital expenditures or the acquisition or construction of fixed assets, in each case, in excess of $25,000, whether individually or in the aggregate;
(ix) all contracts granting to any Person an option or a right of first refusal, right of first-offer or similar preferential right to purchase orders or acquire any Transferred Asset;
(x) all contracts that provide for Inventoryan increased payment or benefit, or accelerated vesting, upon the execution of this Agreement or the Closing or in connection with the transactions contemplated hereby;
(xi) all joint venture or partnership contracts, cooperative agreements and all other contracts providing for the sharing of any profits;
(xii) all contracts by which a Seller licenses the Transferred Licensed Intellectual Property, other than contracts for commercially available, off-the-shelf computer software with a replacement cost or aggregate annual license and maintenance fee of less than $20,000;
(xiii) all contracts that contain any “most favored nation” (or equivalent) provision in favor of any Customer;
(xiv) all local marketing contracts, other than any local marketing contract that involves performance annual payments to or from a Seller of services or delivery of goods or materials to any member of the Radiancy Group engaged less than $25,000 in the Radiancy aggregate;
(xv) all contracts with a Governmental Authority other than contracts with educational institutions administered by a Governmental Authority, including all Tax incentive agreements or similar agreements with respect to the Business with any Governmental Authority;
(xvi) all contracts not made in the ordinary course of an amount business that individually involve annual payments to or value from a Seller in excess of $25,000;
(iiixvii) each Lease, rental all contracts that relate to the acquisition or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, disposition of any business or any leasehold material amount of stock, assets or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)real property;
(ivxviii) each Contract all contracts granting a Seller rights to distribute, promote, market or sell any beverage or beverage product in respect of Intellectual Property (the Territory, other than licenses for shrinkwrapcontracts regarding distribution, clickwrap promotion, marketing and sale of the beverages and beverage products described on Section 7.01(d) of the Disclosure Schedule or other similar commercially available off-the-shelf software that has not been modified any contract with any Seller or customized by a third Party for the Radiancy Business)any of its Affiliates;
(vxix) each collective bargaining agreement and other Contract to or the Knowledge of the Sellers, all written contracts with any labor union Seller or other employee representative any Affiliate of a group of employees;
(vi) each joint ventureSeller granting a Seller rights to distribute, partnershippromote, and other Contract (however named) involving a sharing of profits, losses, costs, market or liabilities by sell any member of beverage or beverage product in the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, includingTerritory, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except only to the extent that such enforceability contracts will not be superseded by the Comprehensive Beverage Agreement; and
(xx) all other contracts and leases involving annual payments to or from a Seller in excess of $25,000 that are material to the Transferred Assets or to the operation of the Business.
(b) Section 3.12(b) of the Disclosure Schedule sets forth a true, correct and complete (i) list as of the date hereof of all Shared Contracts and (ii) list or general description as of the date hereof of any other goods or services that the Business receives or provides pursuant to any national or worldwide contract or agreement that relates to both the Business and the businesses retained by the Sellers and/or their Affiliates that will not be available to the Buyer after the Closing on substantially the same terms as available to the Business prior to the Closing.
(c) Each Material Contract, Shared Contract and Specified Non-Transferring Contract is a legal, valid and binding obligation of a Seller and, to the Knowledge of the Sellers, of each other party to such Material Contract, Shared Contract or Specified Non-Transferring Contract, as applicable, and each is enforceable against a Seller and, to the Knowledge of the Sellers, each such other party in accordance with its terms (except in each case as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally, including the effect of statutory and (ii) is other laws regarding fraudulent conveyances and preferential transfers, and subject to the limitations imposed by general equitable principles regardless of whether such enforceability is considered in a proceeding at law or in equity). None of the Sellers nor, to the Knowledge of the Sellers, any other party to a Material Contract, Shared Contract or Specified Non-Transferring Contract is in material default or material breach or has failed, or as of the Closing will have failed, as applicable, to perform any material obligation under a Material Contract, Shared Contract or Specified Non-Transferring Contract, as applicable, and, to the Knowledge of the Sellers, there does not exist any event, condition or omission that would constitute such a material breach or material default (whether by lapse of time or notice or both). None of the Sellers has received any written notice of a proposed termination, cancellation or non-renewal with respect to any Material Contract, Shared Contract or Specified Non-Transferring Contract. It is understood that certain of the Material Contracts, Shared Contracts or Specified Non-Transferring Contracts may expire by their terms between the date of this Agreement and the Closing Date, and no such expiration will be considered a breach of any of the representations set forth in this Section 3.12(c). Each Material Contract that requires the consent of or notice to the other party thereto to avoid any breach, default or violation of such Material Contract in connection with the transactions contemplated hereby has been identified on Section 3.12(a) of the Disclosure Schedule with an asterisk.
(iiid) Except as set forth in Section 3.15(c) As of the Radiancy Disclosure ScheduleClosing, each Pre-Closing Material Contract will be a legal, valid and binding obligation of a Seller and, to the Knowledge of the Sellers, of each other party to such Pre-Closing Material Contract, and, as of the Closing, each will be enforceable against a Seller and, to the Knowledge of the Sellers, each such other party in accordance with its terms (except in each case as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally, including the effect of statutory and other laws regarding fraudulent conveyances and preferential transfers, and subject to the limitations imposed by general equitable principles regardless of whether such enforceability is considered in a proceeding at law or in equity). As of the Closing, none of the Sellers nor, to the Knowledge of the Sellers, any other party to a Pre-Closing Material Contract will be in material default or material breach or will have failed to perform any material obligation under a Pre-Closing Material Contract and, to the Knowledge of the Sellers, as of the Closing, there will not exist any event, condition or omission that would constitute such a material breach or material default (whether by lapse of time or notice or both). As of the Closing, none of the Sellers will have received any written notice of a proposed termination, cancellation or non-renewal with respect to any Pre-Closing Material Contract.
(e) The Sellers have provided the Buyer with true, correct and complete copies of all Material Contracts and all portions of any Shared Contracts and Specified Non-Transferring Contracts that relate to the Business (together with such other portions thereof as are necessary to comprehend the terms thereof that apply to the Business) and all written modifications, amendments and supplements thereto and written waivers thereof, in each case, as of the date hereof. To the extent that, no Radiancy Group member is between the date hereof and the Closing, the Sellers locate any contracts which would have been required to be disclosed in breach in any material respect response to Section 3.12(a)(xix) if the Sellers had Knowledge of or default under (such contracts on the date hereof, then the Sellers will promptly provide true, correct and to PHMD’s Knowledge, no event has occurred which with notice or the passage complete copies of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contractcontracts to the Buyer.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Coca Cola Co), Asset Purchase Agreement (Coca Cola Co)
Contracts. (ia) Section 3.15(a) of the Radiancy Disclosure Schedule sets forth an accurate A complete list of each executory contract and agreement in the following Contracts categories to which any member of the Radiancy Group engaged in the Radiancy Business NaviCyte is a Party party, or by which it or its assets or properties are bound in any member respect, is attached hereto as SCHEDULE 2.16 (copies of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”which have been provided to Trega):
(i) each Contract (agreements for the purchase, sale, lease or other than purchase orders disposition of equipment, goods, materials, research and development, supplies, studies or capital assets, or for Inventory) that involves the performance of services services, in any case involving more than $10,000.00 (combining, for this purpose, any series of agreements with the same party or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000its affiliated entities);
(ii) each Contract (other than purchase orders contracts or agreements for Inventory) that involves the joint performance of services work or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000services, and all other joint venture agreements;
(iii) each Leasemanagement or employment contracts, rental or occupancy agreementconsulting contracts, licensecollective bargaining contracts, installment termination and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)severance agreements;
(iv) each Contract in respect notes, mortgages, deeds of Intellectual Property (trust, loan agreements, security agreement, guarantees, debentures, indentures, credit agreements and other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business)evidences of indebtedness;
(v) each collective bargaining agreement and other Contract to or with any labor union pension, retirement, profit-sharing, deferred compensation, bonus, incentive, life insurance, hospitalization or other employee representative of a group of employeesbenefit plans or arrangements (including, without limitation, any contracts or agreements with trustees, insurance companies or others relating to any such employee benefit plan or arrangement);
(vi) each joint venturestock option, partnershipstock purchase, and warrant, repurchase or other Contract (however named) involving a sharing contracts or agreements relating to any capital stock of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other PersonNaviCyte;
(vii) any agreement relating to indebtedness for borrowed money contracts or extensions of creditagreements with agents, brokers, consignees, sale representatives or distributors;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, contracts or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete agreements with any Persondirector, officer, employee, consultant or stockholder;
(ix) any agreement providing for indemnification powers of attorney or similar authorizations granted by any member of the Radiancy Group, other than indemnification provided NaviCyte to customers or vendors in the Ordinary Course of Businessthird parties;
(x) any employment licenses, sublicenses, royalty agreements and other contracts or consulting Contract with any Business Employeeagreements to which NaviCyte is a party, or to which the business or any consultant properties or contractor assets of the Radiancy BusinessNaviCyte are otherwise subject (including, other than at-will without limitation, those arrangements that do not include severance or “change of control” provisionsrelating to Proprietary Rights (as defined below)); and
(xi) each amendmentto the extent not listed elsewhere in this Agreement, supplement, all other contracts material to the business of NaviCyte as presently conducted and modification (whether oral or written) in respect of any of the foregoingas proposed to be conducted.
(iib) Except as set forth in Section 3.15(b) Neither NaviCyte nor any of its officers, directors, consultants, agents or representatives has entered into any contract or agreement containing covenants limiting the Radiancy Disclosure Scheduleright of NaviCyte or its officers or directors, as of the date hereofor, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) may be limited by bankruptcyBest Knowledge of NaviCyte or the NaviCyte Majority Stockholders, insolvencyits consultants, reorganization, moratorium agents or other similar laws relating representatives to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach compete in any material respect of business or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contractperson.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Trega Biosciences Inc), Agreement and Plan of Reorganization (Grass George M PHD)
Contracts. (ia) Section 3.15(aPart 2.12(a) of the Radiancy Disclosure Schedule sets forth an accurate list identifies each Company Contract that constitutes a “Material Contract” as of the date of this Agreement. For purposes of this Agreement, each of the following shall be deemed to constitute a “Material Contract”; provided, however, that in no event shall a Benefit Plan be deemed to constitute a “Material Contract”; provided further, that “Material Contracts” shall only include Company Contracts to which any member of the Radiancy Group engaged in the Radiancy Business an Acquired Company is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):party:
(i) each Any Contract which is a “material contract” (other than purchase orders for Inventoryas such term is defined in Item 601(b)(10) that involves performance of services or delivery of goods or materials by any member of Regulation S-K promulgated under the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000Securities Act);
(ii) each Contract (other than purchase orders for Inventory) any Contract, with material obligations remaining to be performed or material liabilities continuing after the date of this Agreement, relating to the acquisition, development, sale or disposition of any business unit that involves performance of services or delivery of goods or materials is material to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000Acquired Companies, taken as a whole;
(iii) each Lease, rental any Contract imposing any material restriction on the right or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting ability of any Acquired Company: (A) to compete (or which purports to restrict in any material respect the ownership of, leasing of, title to, use of, ability of any Acquired Company to compete) with any Person or operate in any leasehold geographic area or other interest in, location in which any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property Acquired Company may conduct business (other than licenses for shrinkwrap, clickwrap (x) confidentiality agreements entered into by the Acquired Companies in the ordinary course of business and (y) Investment Advisory Arrangements or Fund Documents containing any such provisions in the ordinary course of business that address the allocation of investment opportunities or the formation of successor funds); (B) to acquire any product or other similar commercially available off-the-shelf software that has not been modified asset or customized by a third Party for the Radiancy Business);
any services from any other Person; (vC) each collective bargaining agreement and to develop, sell, supply, distribute, offer, support or service any product or any technology or other Contract asset to or with for any labor union other Person; (D) to perform services for any other Person; or (E) to transact business or deal in any other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group manner with any other Person;
(iv) any Contract that contains an exclusivity provision, “most favored nation” provision (except any Investment Advisory Arrangements or Fund Documents (and any related side letter that includes in the ordinary course of business any “most favored nation” provision)), provisions granting a right of first refusal, a right of first negotiation or similar rights or any similar term for the benefit of a third party, in each case involving revenues or expenses of the Acquired Companies of more than $5,000,000 in the fiscal year ended December 31, 2016;
(v) any Contract that contains a put, call, right of first refusal or similar right pursuant to which the Acquired Companies would be required to purchase or sell, as applicable, any material equity interests of any Subsidiary of the Company or Fund, or which grants a right to sell to any Acquired Company or purchase from any Acquired Company any material asset (other than in the ordinary course of business);
(vi) any Contract which contains a material “clawback” or similar undertaking requiring the reimbursement or refund of any fees (whether performance based or otherwise) paid to the Acquired Companies (except any Investment Advisory Arrangement, Fund Document or related “clawback” guaranty Contract that includes in the ordinary course of business any such “clawback” provision (and any related side letters));
(vii) any agreement material Contract relating to indebtedness “soft-dollar” arrangements (i.e., providing for borrowed money or extensions benefits relating to commissions generated from financial transactions executed by broker-dealers on behalf of creditany Funds);
(viii) each any Contract containing covenants that restrict for borrowed money (whether current, short-term or long-term and whether secured or unsecured, or any financial guarantee) incurred by the business activity Acquired Companies or pursuant to which any of the Acquired Companies has any obligations as guarantor, surety, co-signer, endorser or co-maker in respect of any member obligation of the Radiancy Group, including, but not limited to, any exclusivity covenantsPerson, or limit any capital maintenance, keep well or similar agreements or arrangements, other than (A) Contracts solely among the freedom Company or any of any member its wholly owned Subsidiaries and/or (B) Contracts not involving amounts in excess of the Radiancy Group to engage in any line of business or to compete with any Person$1,250,000;
(ix) any agreement providing for indemnification by Contract which is a mortgage, security agreement, capital lease or similar agreement, in each case, that creates or grants a Encumbrance on any member of property or assets that are material to the Radiancy GroupAcquired Companies, other than indemnification provided to customers or vendors in the Ordinary Course of Businesstaken as a whole;
(x) any employment Contract relating to any swap, forward, futures, warrant, option, cap, floor or consulting Contract with any Business Employeecollar financial contract, or any consultant other interest-rate, commodity price, equity value or contractor foreign currency protection contract or other hedging or derivative transaction involving net revenues or expenses by the Acquired Companies of more than $5,000,000 in the Radiancy Businessfiscal year ended December 31, other than at-will arrangements that do not include severance or “change of control” provisions; and2016;
(xi) each amendment, supplement, and modification (whether oral any Contract that restricts payment of dividends or written) any distributions in respect of any the equity interests of the foregoing.Acquired Companies;
(iixii) Except as set forth any Contract pursuant to which the Acquired Companies have continuing material indemnification obligations to any Person that would reasonably be expected to result in Section 3.15(bpayments in excess of $1,000,000, except for (x) any vendor or content licensing Contract entered into in the ordinary course of business or (y) non-disclosure agreements;
(xiii) any Contract, except for this Agreement, relating to the acquisition or disposition of any business or securities by Acquired Companies (whether by merger, sale of shares, sale of assets or otherwise) or pursuant to which any material earn-out, deferred or contingent payment obligations remain outstanding (excluding any such Contract for which all such rights and obligations have been satisfied), in each case currently requiring payments by or to Acquired Companies in excess of $5,000,000;
(xiv) any Contract entered into since January 1, 2014 involving any resolution or settlement of any actual or threatened Legal Proceedings (A) involving payments greater than $1,000,000 or (B) which imposes material continuing obligations on the Acquired Companies or that provides for any material continuing injunctive or other non-monetary relief, in each case, other than confidentiality obligations;
(xv) (A) any Contract pursuant to which any Acquired Company has been granted any option, license or similar right relating to the Intellectual Property Rights of a third party, in each case that is material to the business or assets of the Radiancy Disclosure ScheduleAcquired Companies, taken as a whole (but excluding any license or similar right for commercially available software), and (B) any Contract pursuant to which any option, license or similar right relating to Company Intellectual Property Rights has been granted to a third party (except, for the avoidance of doubt, any Company Fund), in each case that is material to the business or assets of the Acquired Companies, taken as a whole (but excluding any non-exclusive licenses or similar rights granted in the ordinary course of business);
(xvi) any other Contract (or group of related Contracts), except for Investment Advisory Arrangements or Fund Documents or any related side letter, the performance of which currently requires aggregate payments to or from the Acquired Companies during the fiscal year ended December 31, 2016 in excess of $5,000,000 that is not terminable with less than 60 days’ notice without material penalty by the Acquired Companies;
(xvii) any Contract between the Acquired Companies on the one hand, and any Affiliate of the Company (other than any Subsidiary of the Company) on the other hand, that is required to be disclosed under Item 404 of Regulation S-K promulgated under the Securities Act;
(xviii) (A) any Investment Advisory Arrangement or any related Contract which sets forth, governs or in any way modifies any fee, charge or other amount payable to the Acquired Companies in connection with such Investment Advisory Arrangement, including any fee, revenue or expense sharing, settlement, cap, discount, waiver or reimbursement or similar arrangement with any Person under which the Acquired Companies receive or are reasonably expected to receive management fee revenues in excess of $1,000,000 per annum or (B) any Fund Document requiring the Acquired Companies to invest in any Person (where, as of the date hereof, there remains any unfunded commitment with respect thereto);
(xix) any Fund Document containing change in control provisions or “key person” provisions; and
(xx) any Contract relating to the ownership of real property or any Company Lease, in each case, that is material to the Acquired Companies taken as a whole. The Company has Made Available to Parent an accurate and complete copy (in all material respects) of each Material Contract (other than Contracts described in clause “(a)(i)” and clause “(a)(xvii)” above).
(b) Except as would not, individually or in the Radiancy Business Contracts are aggregate, reasonably be expected to have a Material Adverse Effect, each Company Contract that constitutes a Material Contract is valid and in full force and effect and are effect, and, to the Knowledge of the Company, is enforceable in accordance with their its terms (except to the extent that such enforceability (i) may be limited by bankruptcyany Material Contract has expired in accordance with its terms), insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equitythe Equitable Exception.
(iiic) Except as set forth in Section 3.15(c) None of the Radiancy Disclosure ScheduleAcquired Companies has violated or breached, as or committed any default under, any Company Contract where such violation, breach or default would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. As of the date hereof, to the Knowledge of the Company, no Radiancy Group member is in other Person has violated or breached, or committed any default under, any Company Contract, except where such violation, breach in any material respect of or default under (and would not, individually or in the aggregate, reasonably be expected to PHMD’s Knowledgehave a Material Adverse Effect. As of the date hereof, to the Knowledge of the Company, no event has occurred which occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) would reasonably be expected to: (i) result in a violation or breach of any Company Contract; (ii) give any Person the passage right to declare a material default or exercise any remedy under any Company Contract; (iii) give any Person the right to accelerate the maturity or performance of time any Company Contract that constitutes a Material Contract; or both (iv) give any Person the right to cancel, terminate or modify any Company Contract that constitutes a Material Contract, in each case, except where such violation, breach, default or acceleration would constitute not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Since January 1, 2016 through the date hereof, none of the Acquired Companies has received any written notice or, to the Knowledge of the Company, any other communication regarding any actual or possible violation or breach in any material respect of of, or default under) , any Business Contract norMaterial Contract, to PHMD’s Knowledgeexcept where such violation, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contractwould not, individually or in the aggregate, be material to the Acquired Companies, taken as a whole.
Appears in 2 contracts
Sources: Merger Agreement, Agreement and Plan of Merger (Fortress Investment Group LLC)
Contracts. (ia) Section 3.15(a3.11(a) of the Radiancy Osmotica Disclosure Schedule sets forth an accurate list of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Scheduleforth, as of the date hereof, all each of the Radiancy following unexpired leases, subleases, licenses, bonds, debentures, notes, mortgages, indentures, guarantees, other agreements or contracts or other legally binding instruments (each, a “Contract”) to which any Osmotica Company is a party: any Contract,
(i) the performance of which is reasonably expected to involve annual payments on the part of any Osmotica Company in excess of $1,000,000 and is not terminable by such Osmotica Company on 90 days’ notice or less without premium or penalty (excluding sales orders and purchase orders issued in the ordinary course of business);
(ii) with respect to a joint venture, partnership, distributor, reseller or other similar agreement;
(iii) which limits or purports to limit the ability of any of the Osmotica Companies to compete in any line of business or with any person or in any geographic area or during any period of time or requires that any of the Osmotica Companies provide “most favored status,” “favored pricing” (or similar terms) to any customer or other person;
(iv) that grants a Lien (other than an Osmotica Permitted Lien or a Lien that will be released as of the Closing) on any material asset of any of the Osmotica Companies;
(v) that is a lease of real property;
(vi) that provides for the acquisition of any person or any business unit thereof or the sale of any material asset (excluding inventory) of any of the Osmotica Companies outside the ordinary course of business;
(vii) under which (A) any person directly or indirectly guarantees any liabilities or obligations of any of the Osmotica Companies, (B) any of the Osmotica Companies guarantees any liabilities or obligations of any other person or (C) any of the Osmotica Companies incurs indebtedness having an outstanding principal amount (or aggregate commitments) in excess of $1,000,000;
(viii) that provides for the manufacture of Osmotica Products (or any part thereof) for any of the Osmotica Companies;
(ix) that is an employment Contract for any current employee and is reasonably expected to involve payments of more than $150,000 in total compensation in 2015;
(x) that is a consulting Contract for any current Contractor and is reasonably expected to involve payments of more than $150,000 in total compensation per year;
(xi) under which the Osmotica Companies are providing products or services to customers (other than distributors and resellers) and for which the purchase of products or services from the Osmotica Companies for the twelve month period following the date hereof is reasonably expected to exceed $500,000;
(xii) under which any of the Osmotica Companies is (A) a lessee or sublessee of tangible personal property, or (B) a lessor of any tangible personal property owned by the Osmotica Companies, in any single lease under (A) or (B) having an original value in excess of $500,000; or
(xiii) for capital expenditures or the acquisition or construction of fixed assets in excess of $500,000.
(b) All Contracts required to be set forth in Sections 3.11(a) and 3.10(b) of the Osmotica Disclosure Schedule (such Contracts, the “Osmotica Business Contracts Contracts”) are valid, binding and in full force and effect and are enforceable in accordance with their terms except respect to the extent that such enforceability (i) may be limited by bankruptcyapplicable Osmotica Company and, insolvencyto the Knowledge of Osmotica, reorganizationthe other party thereto, moratorium or other similar laws relating subject, as to creditors’ rights generallyenforcement, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) the Enforceability Exceptions. None of the Radiancy Disclosure ScheduleOsmotica Companies is in material breach or material default under any Osmotica Business Contract, as and, to the Knowledge of Osmotica, no other party to any Osmotica Business Contract is in material breach or material default thereunder. As of the date of this Agreement, none of the Osmotica Companies has received any claim or notice of any material breach of or material default under any Osmotica Business Contract. As of the date hereof, there are no Radiancy Group member is in breach in material disputes under any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Osmotica Business Contract nor, to PHMD’s Knowledge, is and none of the Osmotica Companies has received any notice that any other Party party to any such of the Osmotica Business Contract in breach in Contracts intends to cancel or terminate any material respect of or default under such Osmotica Business Contract. Prior to the date hereof, complete and correct copies of all Osmotica Business Contracts have been made available to Vertical/Trigen.
Appears in 2 contracts
Sources: Business Combination Agreement (Osmotica Pharmaceuticals PLC), Business Combination Agreement (Osmotica Pharmaceuticals LTD)
Contracts. (ia) As of the date of this Agreement, there are no Contracts that are material contracts (as defined in Item 601(b)(10) of Regulation S-K) with respect to Public Company, other than those Contracts identified or described in the Public Company SEC Reports filed prior to the date hereof.
(b) Public Company has not entered into any transaction that would be subject to proxy statement disclosure pursuant to Item 404 of Regulation S-K other than as disclosed in an SEC Report filed prior to the date hereof.
(c) Neither Public Company nor any of its Subsidiaries is a party to any agreement under which a third party would be entitled to receive a license or any other right to Public Company Intellectual Property as a result of the transactions contemplated by this Agreement.
(d) Section 3.15(a4.11(d) of the Radiancy Public Company Disclosure Schedule sets forth an accurate list of lists the following Contracts to which any member of Public Company and its Subsidiaries in effect as of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member date of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):this Agreement:
(i) each any Contract (other than or group of related Contracts) for the purchase orders or sale of products or for Inventory) that involves performance the furnishing or receipt of services (A) which calls for performance over a period of more than 180 days from the date of this Agreement, (B) which involves an aggregate of more than $150,000 or delivery (C) in which Public Company or any of its Subsidiaries has granted manufacturing rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any products or territory or has agreed to purchase a minimum quantity of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount services or value in excess of $25,000has agreed to purchase goods or services exclusively from a particular party;
(ii) each any Contract (other than purchase orders for Inventory) that involves performance under which the consequences of services a default or delivery of goods or materials termination would reasonably be likely to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000have a Public Company Material Adverse Effect;
(iii) each Lease, rental any Contract that could reasonably be expected to have the effect of prohibiting or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting impairing the ownership of, leasing of, title to, use of, conduct of the business of Otic Pharma or any leasehold of its Subsidiaries or other interest in, Public Company or any personal property (except personal property leases of its Subsidiaries as currently conducted and installment and conditional sales agreements having aggregate payments of less than $50,000)as currently proposed to be conducted;
(iv) each any Contract under which Public Company or any of its Subsidiaries is restricted from selling, licensing or otherwise distributing any of its technology or products, or providing services to, customers or potential customers or any class of customers, in respect any geographic area, during any period of Intellectual Property (other than licenses for shrinkwrap, clickwrap time or other similar commercially available off-the-shelf software that has not been modified any segment of the market or customized by a third Party for the Radiancy Business)line of business;
(v) each collective bargaining any dealer, distribution, joint marketing, joint venture, joint development, partnership, strategic alliance, collaboration, development agreement and other Contract to or with any labor union or other employee representative of a group of employeesoutsourcing arrangement;
(vi) any Contract for the conduct of research studies, pre-clinical or clinical studies, manufacturing, distribution, supply, marketing or co-promotion of any products in development by or which has been or which is being marketed, distributed, supported, sold or licensed out, in each joint venture, partnership, and other Contract (however named) involving a sharing case by or on behalf of profits, losses, costs, Public Company or liabilities by any member of the Radiancy Group with any other Person;its Subsidiaries; and
(vii) any agreement relating Contract that would entitle any third party to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, receive a license or any consultant other right to intellectual property of Otic Pharma or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of Otic Pharma’s Affiliates following the foregoingClosing.
(iie) Except as set forth Public Company has made available to Otic Pharma a complete and accurate copy of each Contract listed in Section 3.15(bSections 4.10(b)(i), 4.10(b)(ii) and 4.11(d) of the Radiancy Public Company Disclosure Schedule, as of . With respect to each Contract so listed and those Contracts identified or described in the Public Company SEC Reports filed prior to the date hereof: (i) the Contract is legal, all of the Radiancy Business Contracts are valid, binding and enforceable and in full force and effect against Public Company and/or its Subsidiaries, as applicable, and, to the knowledge of Public Company, against each other party thereto, as applicable, subject to the Bankruptcy and are Equity Exception; (ii) the Contract will continue to be legal, valid, binding and enforceable and in full force and effect against Public Company and/or its Subsidiaries, as applicable, and, to the knowledge of Public Company, against each other party thereto, immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing (other than any such Contracts that expire or terminate before such time in accordance with their terms except and not as a result of a breach or default by Public Company or any of its Subsidiaries), in each case subject to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, Bankruptcy and (ii) is subject to general principles of equity.
Equity Exception; and (iii) Except as set forth in Section 3.15(c) none of Public Company, its Subsidiaries nor, to the Radiancy Disclosure Scheduleknowledge of Public Company, as of the date hereofany other party, no Radiancy Group member is in breach in any material respect of or violation of, or default under (under, any such Contract, and to PHMD’s Knowledge, no event has occurred which occurred, is pending or, to the knowledge of Public Company, is threatened, which, with or without notice or the passage lapse of time time, or both both, would constitute a breach in any material respect of or default under) any Business Contract norby Public Company, its Subsidiaries or, to PHMD’s Knowledgethe knowledge of Public Company, is any other Party to any such Business Contract in breach in any material respect of or default party under such Business Contract, except for such breaches, violations or defaults that, individually or in the aggregate, have not had, and are not reasonably likely to have, a Public Company Material Adverse Effect.
Appears in 2 contracts
Sources: Share Purchase Agreement (Tokai Pharmaceuticals Inc), Share Purchase Agreement (Tokai Pharmaceuticals Inc)
Contracts. (ia) Section 3.15(aSECTION 2.16(a) OF THE DISCLOSURE SCHEDULE (with paragraph references corresponding to those set forth below) contains a true and complete list of the Radiancy Disclosure Schedule sets forth an accurate list each of the following Contracts or other arrangements (true and complete copies or, if none, reasonably complete and accurate written descriptions of which, together with all amendments and supplements thereto and all waivers of any terms thereof, have been delivered to Purchaser prior to the execution of this Agreement) to which any member of the Radiancy Group engaged in the Radiancy Business Seller is a Party party or by which any member of the Radiancy Group Assets is bound that is primarily used inbound:
(A) all Contracts (excluding Benefit Plans) providing for a commitment of employment or consultation services for a specified or unspecified term to, or otherwise necessary forrelating to employment or the termination of employment of, any Employee, the operation name, position and rate of compensation of each Employee party to such a Contract and the Radiancy Business expiration date of each such Contract; and (collectivelyB) any written or unwritten representations, the “Radiancy Business Contracts”):
commitments, promises, communications or courses of conduct (iexcluding Benefit Plans and any such Contracts referred to in clause (A)) each Contract (involving an obligation of Seller to make payments in any year, other than purchase orders for Inventory) that involves performance of services with respect to salary or delivery of goods or materials by any member of the Radiancy Group engaged incentive compensation payments in the Radiancy Business ordinary course of an amount business, to any Employee exceeding $25,000 or value any group of Employees exceeding $100,000 in excess of $25,000the aggregate;
(ii) each Contract (other than purchase orders for Inventory) that involves performance all Contracts with any Person containing any provision or covenant prohibiting or limiting the ability of services Seller to engage in any business activity or delivery compete with any Person in connection with the Business or , except as provided in SECTION 4.11, prohibiting or limiting the ability of goods or materials any Person to any member of compete with Seller in connection with the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000Business;
(iii) each Leaseall partnership, rental or occupancy agreementjoint venture, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold shareholders' or other interest in, similar Contracts with any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)Person in connection with the Business;
(iv) each Contract all Contracts with distributors, dealers, manufacturer's representatives, sales agencies or franchises with whom Seller or Los Pueblos deals in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for connection with the Radiancy Business);
(v) each collective bargaining agreement and all Contracts relating to the future disposition or acquisition of any Assets, other Contract to than dispositions or acquisitions of Inventory in the ordinary course of business consistent with any labor union or other employee representative of a group of employeespast practice;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, all collective bargaining or liabilities by similar labor Contracts covering any member of the Radiancy Group with any other Person;Employee; and
(vii) any agreement relating all other Contracts (other than Benefit Plans, the Real Property Leases and insurance policies listed in SECTION 2.18 OF THE DISCLOSURE SCHEDULE) with respect to indebtedness for borrowed money the Business that (A) involve the payment or extensions of credit;
(viii) each Contract containing covenants that restrict potential payment, pursuant to the business activity terms of any member of the Radiancy Groupsuch Contract, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business by or to compete with any Person;
(ix) any agreement providing for indemnification by any member Seller of the Radiancy Group, other more than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; $100,000 annually and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contract.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Station Casinos Inc), Asset Purchase Agreement (Station Casinos Inc)
Contracts. (ia) Section 3.15(a) 4.7 of the Radiancy Company Disclosure Schedule Letter sets forth an accurate list all of the following Contracts Contractual Obligations to which the Company or any member of the Radiancy Group engaged in the Radiancy Business Retained Subsidiaries is a Party party or by which any member of them is bound (collectively with each of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectivelyFiled Contracts, the “Radiancy Business Material Contracts”):);
(i) each Contract Contractual Obligations (other than including any purchase orders order) with any undelivered balance providing for Inventory) that involves performance the sale of products or provision of services or delivery pursuant to which the Company and the Retained Subsidiaries are entitled to receive payments of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of more than $25,0001,000,000;
(ii) each Contract Contractual Obligations (other than including any purchase orders order) with any undelivered balance providing for Inventory) that involves performance of services or delivery of goods or materials to any member of an expenditure by the Radiancy Group engaged in Company and the Radiancy Business of an amount or value Retained Subsidiaries in excess of $25,0001,000,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional Contractual Obligations that relate to the sale agreement, and other Contract affecting of any of the ownership of, leasing of, title to, use of, Company’s or any leasehold or of the Retained Subsidiaries’ assets, other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments than in the ordinary course of less than $50,000)business;
(iv) each Contract in respect Contractual Obligations that relate to the acquisition of Intellectual Property any business, a material amount of stock or assets of any other Person or any real property (other than licenses for shrinkwrapwhether by merger, clickwrap sale of stock, sale of assets or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Businessotherwise);
(v) Except for Contractual Obligations relating to trade receivables, Contractual Obligations relating to Indebtedness, in each collective bargaining agreement and other Contract to or with any labor union or other employee representative case having an outstanding principal amount in excess of a group of employees$1,000,000;
(vi) each Contractual Obligations for joint ventureventures, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, strategic alliances or liabilities by any member of the Radiancy Group with any other Personpartnerships;
(vii) Contractual Obligations that grant to any agreement relating Person other than the Company or the Retained Subsidiaries any (A) exclusive license, supply, distribution or other rights (it being understood that any requirement to indebtedness conform to customer specifications will not be considered an exclusive right for borrowed money purposes of this clause (A)), (B) “most favored nation” rights, (C) rights of first refusal, rights of first negotiation or extensions similar rights or (D) exclusive rights to purchase any of creditthe Company’s or the Retained Subsidiaries’ products or services;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy GroupDistributor, includingsales representative, but not limited to, any exclusivity covenants, marketing or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Personadvertising Contractual Obligations;
(ix) Contractual Obligations with any agreement employee, officer or consultant of the Company or the Retained Subsidiaries, including any severance, retention, change of control or other similar Contractual Obligation pursuant to which the Company or any of the Retained Subsidiaries is or may become obligated to make any severance, bonus or other payment;
(x) Contractual Obligations under which the Company or any of its Subsidiaries has made advances or loans to any other Person, except for advances of business expenses of up to $10,000 in the ordinary course of business;
(xi) Contractual Obligations providing for indemnification any minimum or guaranteed payments by the Company or any member of the Radiancy GroupRetained Subsidiaries to any Person in excess of $1,000,000 annually;
(xii) Contractual Obligations with any customer or distributor that give any guarantee or warranty or make any representation in respect of any Company products or services, in each case valued in excess of $1,000,000, other than indemnification provided (A) any guarantee or warranty implied by law or (B) any standard guarantee or warranty on the form that has heretofore been made available to Parent;
(xiii) Contractual Obligations containing covenants that purport to (A) restrict or limit in any respect the ability of the Company, the Retained Subsidiaries or any of the Company’s future Subsidiaries or Affiliates to compete in any geographical area, market or line of business, (B) restrict or limit the Company, the Retained Subsidiaries or any of the Company’s future Subsidiaries or Affiliates from selling products or delivering services to any Person, (C) other than confidentiality agreements with customers or vendors entered into in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, restrict the Company, the Retained Subsidiaries or any consultant or contractor of the Radiancy BusinessCompany’s future Subsidiaries or Affiliates from hiring any Person or (D) otherwise restrict the Company, other than at-will arrangements that do not include severance the Retained Subsidiaries or “change any of control” provisionsthe Company’s future Subsidiaries or Affiliates from engaging in any aspect of its business; and
(xixiv) each amendmentContractual Obligations with any labor organization, supplementunion, and modification (whether oral works council, workers’ association or written) in respect of any of the foregoingother employee representative body.
(iib) Except as set forth in Section 3.15(b) The Company has heretofore made available to Parent correct and complete copies of the Radiancy Disclosure Scheduleeach Material Contract, as of the date hereof, together with any and all of the Radiancy Business Contracts are amendments and supplements thereto and material “side letters” and similar documentation relating thereto. Each Material Contract is in full force and effect and are enforceable in accordance with their terms except is valid and binding obligation of the Company or its Subsidiaries and, to the extent that such enforceability (i) may knowledge of the Company, each other party thereto. The Company and the Retained Subsidiaries have performed and complied in all material respects with all obligations required to be limited performed or complied with by bankruptcyit under each Material Contract. There is no default under any Material Contract by the Company or the Retained Subsidiaries or, insolvencyto the knowledge of the Company, reorganization, moratorium or by any other similar laws relating to creditors’ rights generallyparty, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which that with notice the lapse of time or the passage giving of time notice or both would constitute a breach in any material respect of default thereunder by the Company or default under) any Business Contract northe Retained Subsidiaries, or, to PHMD’s Knowledgethe knowledge of the Company, is by any other Party to any such Business Contract in breach in any material respect of or default under such Business Contractparty.
Appears in 2 contracts
Sources: Merger Agreement (Symmetry Surgical Inc.), Agreement and Plan of Merger (Symmetry Medical Inc.)
Contracts. (ia) Section 3.15(a) of the Radiancy Disclosure Schedule sets forth an accurate list BAYOU ROAD has disclosed or will disclose prior to Closing each of the following Contracts to which BAYOU ROAD or any member of its Subsidiaries is a party or by or to which BAYOU ROAD or any of its Subsidiaries or any of their respective assets or properties is bound or subject, in each case as of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):date hereof:
(i) each Contract (agreements, other than purchase orders for Inventory) that involves performance corporate customer agreements, involving at least $10,000 of services obligations or delivery of goods benefits; than standard employment agreements or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;arrangements and employee benefit plans.
(ii) each Contract customer agreements with the ten (other than purchase orders for Inventory10) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;largest customers.
(iii) each Leasematerial agreements between BAYOU ROAD or any of its Subsidiaries, rental or occupancy agreement, license, installment and conditional sale agreementon the one hand, and a customer, vendor or supplier, on the other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)hand;
(iv) each Contract agreements (including written settlement agreements) currently in respect effect pursuant to which BAYOU ROAD or any of its Subsidiaries licenses the right to use any Intellectual Property (other than licenses for shrinkwrap, clickwrap as hereinafter defined) to any person or other similar commercially available off-the-shelf software that has not been modified from any person (indicating which of the BAYOU ROAD or customized by a third Party for the Radiancy Businessits Subsidiaries is currently party to such agreement);
(v) each collective bargaining agreement agreements with any committee or organization of, or representing, customers;
(vi) employment, severance and other Contract to consulting agreements with any current or former director, officer or employee which provide for continuing obligations on the part of BAYOU ROAD or any of its Subsidiaries;
(vii) agreements with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by similar association representing any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of creditemployee;
(viii) each Contract containing covenants that restrict agreements for the business activity sale or lease (as lessor) by BAYOU ROAD or any of its Subsidiaries of any member assets or properties (other than automobiles) in excess of $10,000 per agreement;
(ix) agreements relating to the Radiancy Groupacquisition or lease (as lessee) by the BAYOU ROAD or any of its Subsidiaries of any assets or properties in excess of $10,000 per agreement;
(x) agreements relating to the disposition or acquisition of any ownership interest in any person with a book value of $10,000 or more;
(xi) joint venture, including, but not limited to, any exclusivity covenants, partnership or similar agreements;
(xii) agreements that materially limit or purport to materially limit the freedom ability of BAYOU ROAD or any member of the Radiancy Group its Subsidiaries to engage compete in any line of business or to compete with any Personperson or in any geographical area or during any period of time;
(ixxiii) agreements relating to the incurrence of more than $10,000 of Indebtedness by BAYOU ROAD or any agreement providing for indemnification by of its Subsidiaries or restricting the ability of BAYOU ROAD or any member of the Radiancy Group, other than indemnification provided its Subsidiaries to customers or vendors in the Ordinary Course of Businessincur Indebtedness;
(xiv) agreements relating to any Guarantee Obligations (as hereinafter defined) of BAYOU ROAD or any of its Subsidiaries involving more than $10,000 (other than indemnities made in the ordinary course of business which are not material to BAYOU ROAD and its Subsidiaries taken as a whole);
(xv) agreements relating to the making of any loan or advance by BAYOU ROAD or any of its Subsidiaries other than (x) inter BAYOU ROAD loans among BAYOU ROAD and its wholly owned Subsidiaries and (y) those made in the ordinary course of business which are not in excess of $10,000;
(xvi) agreements providing for the indemnification by BAYOU ROAD or any employment or consulting Contract of its Subsidiaries to any person except those entered into in the ordinary course of business which are not material to BAYOU ROAD, and its Subsidiaries taken as a whole;
(xvii) agreements with any Business EmployeeGovernmental Entity except those entered into in the ordinary course of business which are not material to BAYOU ROAD, or any consultant or contractor of the Radiancy Business, and its Subsidiaries taken as a whole and other than at-will arrangements that do not include severance or “change of control” provisionstax audit agreements; and
(xixviii) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoingother material Contracts.
(iib) Except as set forth in Section 3.15(b) There have been delivered or made available, or will be made available to Principal Solar, Inc. true and complete copies of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are written agreements listed in Section 3.9 and a written summary of all of the oral agreements, if any, listed in Section 3.9. Each material Contract to which BAYOU ROAD or any of its Subsidiaries is a party or by or to which BAYOU ROAD or any of its Subsidiaries or any of their respective assets or properties is bound or subject is in full force and effect and are constitutes a legal, valid and binding obligation of BAYOU ROAD or one of its Subsidiaries, as the case may be, and, to the knowledge of BAYOU ROAD, of each other party thereto, enforceable against BAYOU ROAD or one of its Subsidiaries, as the case may be, in accordance with their terms except its terms, subject to the extent that such enforceability (i) may be limited by effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other moratorium, and similar laws relating to or affecting creditors’ ' rights generallygenerally and general equitable principles (whether considered in a proceeding in equity or at law). Neither BAYOU ROAD nor any of its Subsidiaries has received any written notice (x) that any such material Contract is not enforceable against any party thereto or (y) of early termination or intention to early terminate from any other party to any such material Contract. Except as otherwise disclosed, neither BAYOU ROAD or any of its Subsidiaries nor, to the knowledge of BAYOU ROAD, any other party to any such material Contract is in material breach of or material default under any such material Contract.
(c) As used in this Agreement, "Indebtedness" means, as to any person (a) all indebtedness of such person for borrowed money or for the deferred purchase price of property or services (other than current trade liabilities incurred in the ordinary course of business and payable in accordance with customary practices), (b) any other indebtedness of such person which is evidenced by a note, bond, debenture or similar instrument, (c) all obligations of such person in respect of acceptances issued or created for the account of such person and (d) all liabilities secured by any Lien on any property owned by such person even though such person has not assumed or otherwise become liable for the payment thereof. As used in this Agreement, "Guarantee Obligation" means any obligation of (a) the guaranteeing person or (b) another person (including, without limitation, any bank under any letter of credit) to induce the creation of which the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect guaranteeing any debt, leases, dividends or other obligations (the "primary obligations") of any other third person (the "primary obligor") in any manner, whether directly or indirectly, including, without limitation, any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) is subject to general principles advance or supply funds (A) for the purchase or payment of equity.
any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) Except as set forth in Section 3.15(c) to purchase property, securities or services primarily for the purpose of securing the owner of any such primary obligation of the Radiancy Disclosure Schedule, as ability of the date hereofprimary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of such primary obligation against loss in respect thereof, no Radiancy Group member is provided, however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in breach in any material respect the ordinary course of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contractbusiness.
Appears in 1 contract
Contracts. (i) Section 3.15(a5(h) of the Radiancy Disclosure Schedule sets forth an accurate list of the --------- following Contracts agreements or contracts, whether oral or written, to which any member of the Radiancy Group engaged in the Radiancy Business is Sellers are a Party party or by which Sellers or any member of the Radiancy Group is bound that is primarily used inAssets are bound, or otherwise necessary for, other than the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):agreements and contracts described in Exhibit 1(b)(iii): -----------------
(i) each Contract any employment contract or consulting agreement with any consultant or employee earning more than $75,000 per year or having a term in excess of twelve months other than those that are or at the Closing will be terminable by a Seller at will and without payment of any penalty or severance thereunder;
(ii) any lease of Equipment or other personal property involving payment by a Seller of annual rental in excess of $30,000 or any series of leases for substantially similar types of Equipment or other personal property involving payment by a Seller of annual aggregate rentals in excess of $30,000;
(iii) any contract, agreement or commitment for the purchase of Equipment involving the expenditure by a Seller of more than $10,000 individually or $25,000 in the aggregate for related purchases;
(iv) any contract or agreement evidencing or related to indebtedness for borrowed money (other than purchase orders Purchase Orders for Inventoryraw material and inventory);
(v) that involves performance any commission or broker contract with a commission or brokerage structure providing for sales requirements for the Business' products in excess of services $20,000 annually;
(vi) any contract, agreement or delivery commitment to sell, lease or otherwise dispose of goods or materials by any member of the Radiancy Group engaged Assets other than in the Radiancy Business ordinary course of an amount Business;
(vii) any contract, agreement or value commitment with any affiliate of Sellers or any director or officer of Sellers or, to the Knowledge of Seller, any affiliate of any such director or officer (other than employment agreements and Seller's Plans);
(viii) any contract or agreement purporting to limit the freedom of Sellers to compete in the Business, in any geographic area or with any person, except for commission or broker contracts or agreements with distributors or sales representatives disclosed in paragraph (xi) below, and except as set forth in the Licenses disclosed on Schedule 2(a)(x);
(ix) any contract, agreement or commitment to use the intellectual property of non-Sellers which involves payments by Sellers after the Closing Date in excess of $25,000;
(iix) each Contract (other than purchase orders for Inventory) that involves performance of services any contract, agreement or delivery of goods commitment which relates primarily to sales agency or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000distributorship;
(iiixi) each Leaseany contract, rental agreement or occupancy agreementcommitment, licenseother than distributorship agreements, installment and conditional sale agreement, and other Contract affecting pursuant to which any of Sellers have licensed any of the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)Intellectual Property to third parties;
(ivxii) each Contract in respect of Intellectual Property (other than licenses for shrinkwrapany contract, clickwrap agreement or commitment which relates to partnership, strategic alliance, joint venture or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) arrangements involving a sharing of profits, losses, costs, profit or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisionsexpenses; and
(xixiii) each amendmentany contract, supplement, and modification (whether oral agreement or written) in respect commitment not of the type covered by any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability foregoing subsections (i) may through (xii) which have a remaining term exceeding one year, except for those which by their terms are or at the Closing will be limited terminable by bankruptcya Seller at will or on 90 or fewer days' notice and without payment of any penalty or premium thereunder and except for those which involve aggregate payments per contract, insolvency, reorganization, moratorium agreement or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles commitment of equity$10,000 or less.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contract.
Appears in 1 contract
Contracts. (ia) Section 3.15(a) of the Radiancy Disclosure Disclosure. Schedule 3.11 sets forth an a complete and accurate list of all of the Contracts of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):categories:
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged Contracts not made in the Radiancy Business ordinary course of an amount or value in excess of $25,000business;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services Manufacturing or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000joint development agreements;
(iii) each LeaseLicense agreements or royalty agreements, rental whether DCS is the licensor or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)licensee thereunder;
(iv) each Contract in respect of Intellectual Property Confidentiality and non-disclosure agreements (other than licenses for shrinkwrap, clickwrap whether DCS is the beneficiary or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Businessobligated party thereunder);
(v) each collective bargaining agreement and other Contract Customer orders or sales contracts under which the customer is to make a payment after the date hereof of $10,000 or with any labor union or other employee representative of a group of employeesmore;
(vi) each joint ventureContracts or commitments involving future expenditures or Liabilities, partnershipactual or potential, and other Contract (however named) involving a sharing in excess of profits, losses, costs, $10,000 after the date hereof or liabilities by any member of otherwise material to the Radiancy Group with any other PersonBusiness or the Assets;
(vii) any agreement Contracts or commitments relating to indebtedness for borrowed money or extensions of creditcommission arrangements with others;
(viii) each Contract Employment contracts, consulting contracts and severance agreements, including contracts (A) to employ or terminate executive officers or other personnel and other contracts with present or former officers or directors of DCS or (B) that will result in the payment by, or the creation of any liability of DCS, the Stockholders or Vertex to pay any severance, termination, "golden parachute," or other similar payments to any present or former personnel following termination of employment or otherwise as a result of the consummation of the transactions contemplated by this Agreement;
(ix) Indemnification agreements;
(x) Promissory notes, loans, agreements, indentures, evidences of indebtedness, letters of credit, guarantees, or other instruments relating to an obligation to pay money, whether DCS the borrower, lender or guarantor thereunder (excluding credit provided by DCS in the ordinary course of business to purchasers of its products and obligations to pay vendors in the ordinary course of business and consistent with past practice);
(xi) Contracts containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit limiting the freedom of DCS or any member officer, director, Employee or Affiliate of the Radiancy Group DCS to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of Person that relates directly or indirectly to the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(xxii) any employment or consulting Any Contract with any Business Employeethe federal, state or local government or any consultant agency or contractor department thereof;
(xiii) Any Contract with a Related Party;
(xiv) Leases of the Radiancy Business, other real or personal property involving annual payments of more than at-will arrangements that do not include severance or “change of control” provisions$10,000; and
(xixv) each amendmentAny other Contract under which the consequences of a Default or termination would reasonably be expected to have a Material Adverse Effect on DCS, supplement, and modification (whether oral individually or written) in respect of any of the foregoingaggregate.
(iib) Except as set forth in Section 3.15(b) Availability; Summary. Complete and accurate copies of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are in full force listed on Schedule 3.11, including all amendments and effect and are enforceable in accordance with their terms except supplements thereto, have been made available to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles Vertex. DCS has included as part of equity.
(iii) Except as set forth in Section 3.15(c) Schedule 3.11 a brief summary of the Radiancy Disclosure Schedule, as material terms of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business each oral Contract.
Appears in 1 contract
Contracts. (i) Section 3.15(aSECTION 3.1(q)(i) of the Radiancy Company Disclosure Schedule Letter sets forth an accurate list forth, as of the date of this Agreement, each of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business Company or its Subsidiary is a Party party or by which any member assets of the Radiancy Group Company or its Subsidiary is bound that is primarily used in(each, or otherwise necessary for, the operation of the Radiancy Business a “Company Material Contract”) (collectively, the “Radiancy Business Contracts”excluding any Transaction Documents):
(i) each Contract (other than purchase orders for InventoryA) that involves performance purports to limit, curtail, restrict or prohibit the Company (including, after the Effective Time, the Surviving Corporation) or its Affiliates from competing in business with any Person or in any geographic area or line of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000business;
(ii) each Contract (other than purchase orders for InventoryB) that involves performance of services or delivery of goods or materials grants to any member third Person any (1) exclusive supply, distribution or other similar contractual exclusivity rights or (2) “most favored nation” rights to the customers and distributors of the Radiancy Group engaged in the Radiancy Business of an amount Company or value in excess of $25,000any Subsidiary;
(iiiC) each Leasethat grants any rights of first refusal, rental rights of first offer or occupancy agreementother similar rights to any Person with respect to any material asset of the Company or any Subsidiary;
(D) that includes any continuing “earn out” or other similar contingent consideration obligations or other obligations (including indemnification obligations) outstanding on the part of the Company or any Subsidiary in connection with acquisitions by the Company or its Subsidiary of assets or capital stock of or other equity interests in any Person;
(E) with Significant Customers;
(F) with Significant Suppliers;
(G) that relates to the acquisition by the Company or any Subsidiary (whether by merger, licensesale of stock, installment and conditional sale agreementof assets or otherwise), and other Contract affecting the ownership ofdirectly or indirectly, leasing ofof any business, title to, use assets or capital stock of, or any leasehold or other interest equity interests in, any personal Person or any real property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)1) since January 1, 2015 or (2) with material ongoing indemnification obligations;
(ivH) each Contract that relates to the pending sale or disposition, directly or indirectly, of material assets of the Company or its Subsidiary, other than in the ordinary course of business;
(I) that relates to or evidences Indebtedness;
(J) under which any Person has directly or indirectly guaranteed or assumed Indebtedness of the Company or its Subsidiary;
(K) that (1) provides for the grant of any right by or to the Company or any Subsidiary under or with respect of to any Intellectual Property (other than (x) non-exclusive licenses for shrinkwrapgranted by the Company or its Subsidiary in the ordinary course of business, clickwrap (y) data licenses granted to the Company and its Subsidiary in the ordinary course of business by Persons other than the Significant Suppliers and (z) licenses of commercially available Software generally available on commercially reasonable, non-negotiated terms with a yearly license fee of no more than $50,000 in the aggregate) or (2) relates to the development, maintenance, support, servicing, operation or enhancement of any material Software, systems, networks, websites or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business)IT Assets;
(vL) each collective bargaining agreement and other Contract providing for any minimum or guaranteed payments by the Company or any Subsidiary to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(viiM) that obligates the Company or any agreement relating Subsidiary to indebtedness for borrowed money make any capital investment or extensions capital expenditure in an amount in excess of credit$50,000 in an individual transaction or $100,000 in a series of related transactions;
(viiiN) each Contract containing covenants for joint ventures, strategic alliances or partnerships that restrict involve the business activity sharing of any member of the Radiancy Grouprevenues, including, but not limited to, any exclusivity covenants, profits or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete losses with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xiO) each amendment, supplement, and modification that prohibits (whether oral ii) dividends or written) distributions in respect of any Equity Interests, (2) pledging of Equity Interests or assets of the foregoingCompany or any Subsidiary or (3) incurrence of Indebtedness.
(ii) Except as set forth in Section 3.15(b) Each of the Radiancy Disclosure ScheduleCompany Material Contracts and the Affiliate Contracts is valid and binding on the Company and, as to the Knowledge of the date hereofCompany, all of each other party thereto and is in full force and effect, except to the Radiancy Business Contracts are extent that the enforceability thereof may be limited by the Bankruptcy and Equity Exception and except where any such failure to be valid and binding or to be in full force and effect and are enforceable would not reasonably be expected to be material, individually or in accordance with their terms except the aggregate, to the extent that such enforceability (i) may be limited Company and its Subsidiary, taken as a whole. There is no default or breach under any Company Material Contract or any Affiliate Contract by bankruptcythe Company or any Subsidiary or, insolvencyto the Knowledge of the Company, reorganization, moratorium or any other similar laws relating to creditors’ rights generallyparty thereto, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which that, with notice or the passage lapse of time or both both, would constitute a default or a breach in thereunder by the Company or any material respect Subsidiary or, to the Knowledge of the Company, any other party thereto, and the Company has not received written notice of any breach of, default or alleged default under) , or intent to terminate, any Business Company Material Contract noror any Affiliate Contract, except in each case as would not reasonably be expected to be material, individually or in the aggregate, to PHMD’s Knowledgethe Company and its Subsidiary, is any other Party taken as a whole. Complete and correct copies of each Company Material Contract and Affiliate Contract (as amended to any such Business Contract in breach in any material respect the date of or default under such Business Contractthis Agreement) have been made available to Parent prior to the date of this Agreement.
Appears in 1 contract
Contracts. (i) Section 3.15(a) of the Radiancy Disclosure Set forth in Schedule sets forth an accurate 4.10 is a list of the following Contracts written agreements, instruments, guaranties, or commitments to which Seller or Seller's Subsidiary is a party or by which or to which any member of the Radiancy Group engaged in the Radiancy Business is a Party assets of Seller and Seller's Subsidiary are bound or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business subject (collectively, the “Radiancy Business "Material Contracts”):"), true and complete copies of which have been provided to Buyer:
(a) distributor, sales, marketing, vendor, advertising, financial advisory, broker-dealer, agency or manufacturer's representative contracts involving more than $10,000;
(b) continuing contracts for the purchase or provision of materials, supplies, equipment or services involving in the case of any such contract more than $10,000 over the life of the contract;
(c) contracts that expire or may be renewed at the option of any Person other than Seller so as to expire more than one year after the date of this Agreement;
(d) trust indentures, mortgages, promissory notes, loan agreements or other contracts for the borrowing of money, any currency exchange, commodities or other hedging arrangement or any leasing transaction of the type required to be capitalized in accordance with GAAP;
(e) contracts for capital expenditures in excess of $10,000 in the aggregate;
(f) contracts currently in effect that were entered into in the ordinary course of business and that involve the payment or receipt of consideration in excess of $50,000;
(g) contracts for the sale of any assets or properties of Seller other than in the ordinary course of business or for the grant to any Person any preferential rights to purchase any assets of properties of Seller;
(h) contracts establishing joint ventures or partnerships;
(i) each Contract (other than purchase orders for Inventory) that involves performance contracts containing any obligations or liabilities of services or delivery any kind to holders of goods or materials by any member capital stock of the Radiancy Group engaged in Seller as such except to the Radiancy Business extent that such contract is an Excluded Asset or is a liability or obligation not assumed by Buyer pursuant to the terms of an amount or value in excess of $25,000Section 3.2 hereof;
(iij) each Contract (other than purchase orders for Inventory) that involves performance contracts relating to the acquisition by Seller of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, operating business or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments capital stock of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(viik) contracts requiring the payment of any agreement relating to indebtedness for borrowed money Person of any override or extensions of creditsimilar commission or fee;
(viiil) each Contract containing covenants that restrict contracts with or for the business activity benefit of any member current or former officer, director, employee, consultant, agent, representative or equity owner, including any employment, consulting or deferred compensation agreement and any executive compensation, bonus or incentive plan agreement except to the extent that such contract is an Excluded Asset of a liability or obligation not assumed pursuant to the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom terms of any member of the Radiancy Group to engage in any line of business or to compete with any PersonSection 3.2 hereof;
(ixm) any agreement providing for indemnification by any member agreements of the Radiancy Groupguarantee, other than indemnification provided to customers support, indemnification, assumption or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employeeendorsement of, or any consultant similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or contractor otherwise) or indebtedness of the Radiancy Business, any other than at-will arrangements that do not include severance or “change of control” provisionsPerson; andor
(xin) each amendment, supplement, contracts that were not made in the ordinary course of business and modification that are material to Seller. Neither Seller nor Seller's Subsidiary is in violation of or in default under (whether oral nor does there exist any condition that with the passage of time or writtenthe giving of notice could reasonably be expected to cause such a violation of or default under) in respect of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are Material Contract. Each Material Contract is in full force and effect and are is a legal, valid and binding obligation of Seller or Seller's Subsidiary and, to the knowledge of Seller, each of the other parties thereto, enforceable in accordance with their terms except its terms, in each case, subject to the extent that such enforceability (i) may be limited by applicable laws of bankruptcy, insolvency, reorganization, moratorium insolvency or other similar laws relating to creditors’ ' rights generally, generally and (ii) is subject to general principles of equity (whether applied in a proceeding in law or equity).
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contract.
Appears in 1 contract
Sources: Asset Purchase Agreement (Manhattan Associates Inc)
Contracts. (i) Section 3.15(a3.12(d)(i) of the Radiancy Disclosure Schedule sets forth an accurate list lists, as of the following Agreement Date, all Contracts to which the Company or any member of the Radiancy Group engaged in the Radiancy Business its Subsidiaries is a Party party or by which the Company or any member of its Subsidiaries is bound pursuant to which any Intellectual Property Right or Technology is licensed to the Company or any of its Subsidiaries (other than (A) non-exclusive software licenses or software-as-a-service agreements with respect to Shrink-Wrap Software, (B) Open Source Licenses, (C) Personnel Agreements, (D) data protection Contracts (including business associate agreements and personal information processing agreements), letters of authorization, terms of service, order forms and nondisclosure Contracts entered in the Ordinary Course of Business, (E) non-exclusive licenses to data or feedback contained in Contracts with the Company’s and its Subsidiaries’ customers, resellers, channel partners or other strategic partners that were entered into the Ordinary Course of Business, and (F) licenses of Intellectual Property Rights or Technology that do not materially deviate from the Intellectual Property Rights and Technology licensing provisions set forth in the corresponding Standard Form Agreement) (collectively, “Inbound Licenses”).
(ii) Section 3.12(d)(ii) of the Radiancy Group Disclosure Schedule lists, as of the Agreement Date, each Contract to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound pursuant to which the Company or any of its Subsidiaries has granted to any Person any license under, agreed not to assert or enforce, or in which any Person has otherwise received or acquired any right (whether or not currently exercisable) or interest in, any Company Owned IP (other than (A) data protection Contracts (including business associate agreements and personal information processing agreements), letters of authorization, terms of service, order forms and nondisclosure agreements entered in the Ordinary Course of Business, (B) non-exclusive licenses to provide the Company Products to the Company’s or any Subsidiary’s customers entered in the Ordinary Course of Business, (C) licenses, access or rights granted to service providers to use Company Data in connection with the provision of services to the Company or any of its Subsidiaries, (D) access or licenses to Company IP granted to Company Service Providers pursuant to Personnel Agreements and (E) incidental trademark licenses) (collectively, “Outbound Licenses”).
(iii) The Company has made available to Parent a correct and complete copy of each standard form of Contract used by the Company and its Subsidiaries at any time in connection with its business, including (as applicable) each of its unmodified standard forms of: (A) employee agreement containing any assignment or license of Intellectual Property Rights or any confidentiality provision, (B) consulting or independent contractor agreement containing any assignment or license of Intellectual Property Rights or any confidentiality provision, (C) confidentiality or nondisclosure agreement and (D) customer contract providing for non-exclusive use of or access to the Company Products (collectively, the “Standard Form Agreements”).
(iv) With respect to the each of (A) terms of service and order forms relating to software that is primarily used innot Shrink-Wrap Software entered into by the Company or any of its Subsidiaries, and (B) non-exclusive licenses to provide the Company Products to the Company’s or otherwise necessary for, any Subsidiary’s customers entered into by the operation Company or any of its Subsidiaries in the Radiancy Ordinary Course of Business (collectively, the “Radiancy Business ContractsMaterial IP Licenses”):
(i) ), each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged Company and its Subsidiaries has performed in the Radiancy Business of an amount or value in excess of $25,000;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all material respects all of the Radiancy Business Contracts are obligations required to be performed by it and is entitled to all benefits under, and has not received any written notice alleging it to be in default in respect of, any Material IP License. Each of the Material IP Licenses is in full force and effect and are enforceable in accordance with their terms except effect, subject only to the extent that such enforceability (i) may be limited by bankruptcyeffect, insolvencyif any, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure ScheduleEnforcement Exceptions. There exists no default or event of default under any Material IP License by the Company or any of its Subsidiaries or, as to the Knowledge of the date hereofCompany, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contractparty thereto.
Appears in 1 contract
Sources: Merger Agreement (Twilio Inc)
Contracts. Except as described in Exhibit 3.8 or the other Schedules hereto (i) Section 3.15(a) and except for purchase contracts and orders for inventory in the Ordinary Course of Business consistent with past practice), Seller is not, as of the Radiancy Disclosure Schedule sets forth an accurate list date of this Agreement, a party to or bound by any:
(a) material agreement or contract not made in the Ordinary Course of Business of the following Contracts Facility;
(b) employee collective bargaining agreement or other contract with any labor union as relates to the Facility;
(c) covenant not to compete;
(d) lease or similar agreement under which any member of the Radiancy Group engaged in the Radiancy Business Seller is a Party lessor or sublessor of any material real property owned or leased by which Seller or any member portion of premises otherwise occupied by Seller as relates to the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):Facility;
(i) each Contract lease or similar agreement under which (A) Seller is lessee of, or holds or uses, any machinery, equipment, vehicle or other than tangible personal property owned by a third party or (B) Seller is a lessor or sublessor of any tangible personal property owned by Seller, (ii) continuing contract for the future purchase orders for Inventoryof materials, supplies or equipment pertaining to the Facility, or (iii) that involves performance management, service, consulting or other similar type of services or delivery of goods or materials by any member of contract pertaining to the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000Facility;
(iif) each Contract (license or other than purchase orders for Inventory) that involves performance of services agreement relating in whole or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title part to, use of, or any leasehold or other interest in, any personal property trademarks (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, license or limit other agreement under which Seller has the freedom of right to use any member of the Radiancy Group to engage in any line of business same owned or to compete with any Personheld by a third party);
(ixg) agreement or contract under which Seller has borrowed or lent any agreement providing for indemnification by money or issued any member note, bond, indenture or other evidence of the Radiancy Groupindebtedness or directly or indirectly guaranteed indebtedness, liabilities or obligations of others (other than indemnification provided to customers or vendors (i) endorsements for the purpose of collection in the Ordinary Course of Business, (ii) agreements or contracts among Seller or among the Facility, and (iii) advances to employees of the Facility in the Ordinary Course of Business);
(xh) any employment mortgage, pledge, security agreement, deed of trust or consulting Contract with any Business Employeeother document granting a lien on the Facility (including liens upon properties acquired under conditional sales, capital leases or any consultant other title retention or contractor of the Radiancy Business, security devices but excluding operating leases) other than at-will arrangements that do not include severance or “change of control” provisions; andPermitted Encumbrances;
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) may be limited other agreement, contract, lease, license, commitment or instrument relating to the Facility to which Seller is a party or by bankruptcyor to which the Facility or any of its assets or business are bound or subject; or
(j) any agreement, insolvencycontract, reorganizationunderstanding or business venture relating to the Facility with any physician, moratorium other provider or any other Person that violates the Medicare/Medicaid Fraud and Abuse amendments or any regulations thereunder adopted by the U.S. Department of Health and Human Services or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equityfederal or state statutes or regulations.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contract.
Appears in 1 contract
Sources: Asset Purchase Agreement
Contracts. Except as disclosed on Schedule 2.16(a) (i) Section 3.15(a) of collectively with the Radiancy Disclosure Schedule sets forth an accurate list of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectivelyReal Property Lease, the “Radiancy Business Disclosed Contracts”):), the Company is not bound by or a party to:
(i) each Contract any Contractual Obligation (or group of related Contractual Obligations) for the purchase or sale of inventory, raw materials, commodities, supplies, goods, products, equipment or other than purchase orders personal property, or for Inventory) that involves performance the furnishing or receipt of services services, for which the Company paid, has an obligation to pay, received, or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value is entitled to receive, in excess of $25,00050,000 for the year ended December 31, 2024;
(ii) each Contract (1) any capital lease or (2) any other than purchase orders lease or other Contractual Obligation relating to the Equipment providing for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value annual rental payments in excess of $25,00050,000, under which any Equipment is held or used by the Company;
(iii) each Leaseany Contractual Obligation relating to the lease or license of any Asset, rental or occupancy agreement, license, installment including Technology and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Businessand including all customer license and maintenance agreements);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided (1) Real Property Leases or leases relating to customers or vendors the Equipment and (2) Contractual Obligations that include the license of Company Technology and are entered into by the Company in the Ordinary Course of Business;
(iv) any Contractual Obligation for the purchase or sale of products or for the furnishing or receipt of services (1) which involves annualized expenditure of more than $50,000, or (2) in which the Company has granted manufacturing rights, “most favored nation” or “best price” pricing provisions or marketing or distribution rights relating to any services, products or territory, or has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a certain party;
(v) any Contractual Obligation relating to the acquisition or disposition of (i) any business (whether by merger, consolidation or other business combination, sale of securities, sale of assets or otherwise) or (ii) any Asset other than in the Ordinary Course of Business;
(vi) any Contractual Obligation under which the Company is, or may become, obligated to pay any amount in respect of indemnification obligations, purchase price adjustment or otherwise in connection with any (1) acquisition or disposition of assets or securities (other than the sale of inventory in the Ordinary Course of Business), (2) merger, consolidation or other business combination or (3) series or group of related transactions or events of the type specified in the immediately preceding clauses (1) and (2).
(vii) any Contractual Obligation concerning or consisting of a partnership, limited liability company or joint venture agreement or any other relationship involving the sharing of profits, losses or costs;
(viii) any Contractual Obligation (or group of related Contractual Obligations) (1) under which the Company has created, incurred, assumed or guaranteed any Indebtedness or (2) under which the Company has permitted any Asset to become subject to an Encumbrance, other than a Permitted Encumbrance;
(ix) any Contractual Obligation under which any other Person has guaranteed any Indebtedness of the Company;
(x) any employment or consulting Contract Contractual Obligation involving any obligation on the part of the Company to refrain from competing with any Business EmployeePerson, from soliciting any employees, independent contractors or customers of any consultant Person or contractor of the Radiancy Business, from conducting any other than at-will arrangements that do not include severance or “change of control” provisions; andlawful commercial activity (including in any geographic region);
(xi) each amendmentany Contractual Obligation under which the Company is, supplementor may become, obligated to incur any severance pay, retention, change of control, or other compensation which would become payable by reason of this Agreement or the Contemplated Transactions;
(xii) any Contractual Obligations with any labor union or other labor organization, including any collective bargaining agreement;
(xiii) any Contractual Obligation under which the Company has, or may have, any Liability to any investment bank, broker, financial advisor, finder or other similar Person (including an obligation to pay any legal, accounting, brokerage, finder’s, or similar fees or expenses in connection with this Agreement or the Contemplated Transactions);
(xiv) any Contractual Obligation providing for the employment or consultancy (including on an independent contractor basis) with an individual (or in the case of a consultant or independent contractor, an entity) providing for Compensation in excess of $50,000 per annum (other than an Employee Plan) and modification that is not terminable at-will by the Company;
(whether oral xv) any Contractual Obligation under which the Company has advanced or written) in respect of loaned an amount to any of its Affiliates or Company Employee (other than travel allowances in the foregoingOrdinary Course of Business);
(xvi) any Contractual Obligation with any (i) Stockholder or (ii) current or former officer, director or employee of the Company or any Affiliate thereof that is not related to such Person’s employment or service as a director.
(iixvii) Except as set forth in Section 3.15(b) of any settlement, conciliation or similar Contractual Obligations imposing an obligation on the Radiancy Disclosure Schedule, as of Company after the date hereof, all ;
(xviii) any Contractual Obligation that limits the ability of the Radiancy Company or any of its Affiliates to incur any Indebtedness or to Guarantee any Indebtedness or other obligation of any Person, or that limits the amount of any Indebtedness that the Company may incur or Guarantee, or prohibits it from granting any Encumbrance, or than any Permitted Encumbrance, on any Asset to secure any Indebtedness incurred or Guaranteed;
(xix) any Contractual Obligation under which the consequences of a default or termination could reasonably be expected to have a Material Adverse Effect;
(xx) any Contractual Obligation that cannot be terminated by the Company for convenience that could reasonably be expected to have a Material Adverse Effect; or
(xxi) any Contractual Obligation not otherwise disclosed on Schedule 2.16(a) and (A) pursuant to which the Company has an aggregate future liability to any Person in excess of $50,000, (B) entered into other than in the Ordinary Course of Business Contracts are in full force and effect and are enforceable in accordance with their terms except or other than on arms-length terms, or (C) that is material to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium conduct or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) operation of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business ContractBusiness.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Inhibikase Therapeutics, Inc.)
Contracts. (i) Section 3.15(a) 3.18 of the Radiancy Disclosure Schedule sets forth an accurate list of lists the following Contracts Contractual Obligations (excluding any Contractual Obligations that are terminable by the Company or any of its Subsidiaries on not more than 30 days notice without penalty) to which the Company or any member of the Radiancy Group engaged in the Radiancy Business its Subsidiaries is a Party party:
(a) any Contractual Obligation (or by which group of Contractual Obligations) for the lease of personal property to or from any member Person providing for lease payments in excess of $25,000 annually;
(b) any Contractual Obligation (or group of related Contractual Obligations) for the Radiancy Group is bound that is primarily used inpurchase or sale of raw materials, commodities, supplies, products, or otherwise necessary forother personal property, or for the furnishing or receipt of services, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):
(i) each Contract (other than purchase orders for Inventory) that involves performance of services which will extend over a period of more than one year or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value involves consideration in excess of $25,000;
(iic) each Contract any Contractual Obligation creating or making the Company or any of its Subsidiaries a party in a partnership, limited liability company or joint venture;
(other than purchase orders for Inventoryd) that involves performance any Contractual Obligation (or group of services related Contractual Obligations) under which it has created, incurred, assumed, or delivery of goods or materials to guaranteed any member of the Radiancy Group engaged in the Radiancy Business of an amount or value Indebtedness in excess of $25,000;
(iii) each Lease10,000 or under which it has imposed a Lien on any of its assets, rental tangible or occupancy agreementintangible, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative endorsement of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness checks for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors deposit in the Ordinary Course of Business;
(xe) any employment Contractual Obligation concerning confidentiality or consulting Contract with noncompetition;
(f) any Business Employee, material Contractual Obligation relating to the Company or any consultant of its Subsidiaries, their assets, liabilities or contractor of business between or among the Radiancy Business, Company and its Affiliates (other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, between the Company and modification (whether oral or written) in respect of any of the foregoing.Company's Subsidiaries);
(iig) Except as set forth any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of its current or former directors, officers, consultants, agents or employees;
(h) any collective bargaining agreement;
(i) any Contractual Obligation providing for the employment or consultancy with any individual on a full-time, part-time, consulting or other basis in Section 3.15(bexcess of $10,000 or providing severance or retirement benefits in excess of $25,000 in the aggregate;
(j) any Contractual Obligation under which it has advanced or loaned any amount to any of its stockholders, Affiliates, directors, officers, consultants, agents or employees other than in the Ordinary Course of Business;
(k) any other Contractual Obligation (or group of related Contractual Obligations) the performance of which involves consideration in excess of $10,000; or
(l) any Contractual Obligation pursuant to which a party thereto is entitled to a commission based on sales to or revenues or profits derived from one or more customers, or success fees, finders fees or other compensation related to sales. The Company has made available to the Buyer a correct and complete copy of each written Contractual Obligation listed in ss. 3.18 of the Radiancy Disclosure Schedule and a written summary setting forth the terms and conditions of each oral Contractual Obligation referred to in ss. 3.18 of the Disclosure Schedule, as . With respect to each such Contractual Obligation: (i) to the Knowledge of the date hereofCompany and the Sellers, all of (a) the Radiancy Business Contracts are in full force Contractual Obligation is legal, valid, binding and effect and are enforceable in accordance with their terms against the Company, except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or insolvency and other similar laws relating to Laws affecting the enforcement of creditors’ ' rights generally, and, to the Knowledge of the Sellers and the Company, in full force and effect, and (b) the Contractual Obligation will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms immediately following the consummation of the transactions contemplated hereby; (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) none of the Radiancy Disclosure ScheduleCompany, as any of its Subsidiaries, any Seller or (to the Knowledge of the date hereof, no Radiancy Group member Company and the Sellers) any other party thereto is in breach in any material respect of or default under (default, and to PHMD’s Knowledge, no event has occurred which with notice or the passage lapse of time or both would constitute a breach in or default, or permit termination, modification, or acceleration, under the Contractual Obligation; and (iii) none of the Company, any material respect of its Subsidiaries, any Sellers or default under(to the Knowledge of the Company and the Sellers) any Business Contract nor, to PHMD’s Knowledge, is other party thereto has repudiated any other Party to any such Business Contract in breach in any material respect provision of or default under such Business Contractthe Contractual Obligation.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization and Merger (Be Aerospace Inc)
Contracts. (ia) Section 3.15(aSchedule 2.17(a) lists as of the Radiancy Disclosure Schedule sets forth an accurate list date of this Agreement all of the following written, and a brief description of all oral, Contracts that are (x) material to which any member the business, assets, liabilities, results of operation, operations or financial condition of the Radiancy Group engaged in Business or the Radiancy Business is a Party Newsday Assets or by which any member the Newsday Liabilities and (y) without regard to materiality, including each of the Radiancy Group is bound that is primarily used in, or otherwise necessary forfollowing insofar as it relates to the Business, the operation Newsday Assets or the Newsday Liabilities (all of the Radiancy Business (collectivelyContracts required to be listed on Schedule 2.17(a), together with the Real Property Leases, the Subleases, the Contracts that are required to be listed on Schedule 2.10(a)-2, the collective bargaining agreements that are required to be listed on Schedule 2.13(c)-1 and the Contracts required to be listed on Schedule 2.18, the “Radiancy Business Material Contracts”):
(i) each Contract (any mortgage, indenture, note, installment obligation or other instrument, agreement or arrangement for or relating to any Debt, other than purchase orders indebtedness for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000borrowed money;
(ii) each Contract (other than purchase orders any guaranty, direct or indirect, primary or secondary, by Tribune or any of its Subsidiaries of any obligation for Inventory) that involves performance of services borrowings or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000otherwise;
(iii) each Leaseany Contract granting any Person a Lien on any of the Newsday Assets;
(iv) any Contract with an advertiser, rental sponsor or occupancy similar party involving payments in excess of $1,000,000 for any such Contract;
(v) any Contract providing for the grant of any preferential rights to purchase or lease any of the Newsday Assets;
(vi) any lease or similar arrangement relating to the Business for the use of personal property involving payments of in excess of $250,000 per annum;
(vii) any Contract with a term in excess of 12 months not terminable by a Tribune Entity on less than 90 days’ notice providing for annual aggregate payments (contingent or otherwise, including milestones, earn-outs, contingent payments and other future payment obligations) in excess of $500,000;
(viii) any Contract: (A) containing non-competition, non-solicitation or other similar limitations restricting the conduct of the Business, or the ability of the Business (including Newco or any of its Subsidiaries after consummation of the Closing) to compete with any Person or to solicit the employees or customers of any Person; (B) that grants to the other party or any third person “most favored nation” status; or (C) that grants to the other party or any third person any exclusive right or rights or in which any third party grants the Business (including Newco or any of its Subsidiaries after consummation of the Closing) any exclusive right or rights;
(ix) any Contract imposing any material restriction or limitation on the sale or other transfer of any of the Newsday Assets other than, for purposes of this clause (ix) only, anti-assignment provisions;
(x) any Contract for a partnership, joint venture or similar agreement;
(xi) any Contract that purports to bind Cablevision or any of its Affiliates (excluding Newco Sub) after the consummation of the Closing;
(xii) any Contracts involving any obligation or liability of the Business (whether direct or indirect, licensefixed or contingent, installment and conditional sale agreementknown or unknown, due or to become due, accrued or otherwise, and other whether or not determined or determinable) as surety, co-signer, endorser, co-maker, indemnitor or otherwise in respect of the obligations of any Person;
(xiii) any Contract affecting containing or providing for any Tax sharing, Tax allocation or Tax indemnification;
(xiv) any Contract relating to the ownership of, leasing of, title to, use of, pending acquisition or disposition of any business or any leasehold Newsday Assets or Newsday Liabilities, other than in the Ordinary Course;
(xv) any Contract relating to the acquisition, license or other interest indisposition of Newsday Intellectual Property, other than Implied Licenses, Paid Mass-Market Licenses, Unrestricted Free Software Licenses and Restricted Free Software Licenses and other than any personal property (except personal property leases and installment and conditional sales agreements having such Contract involving aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap 100,000 or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors $2,000,000 in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisionsaggregate for all such Contracts; and
(xixvi) each amendment, supplement, and modification (whether oral any written Contract with any current or written) in respect former employees of Tribune or any of its Subsidiaries who perform services in connection with the foregoingBusiness (but excluding any persons who are employed by Tribune or one of Tribune’s Subsidiaries that is not a Newsday Entity who provide the services described on Schedule 2.13(g)) involving the payment of more than $100,000 per year, other than Contracts that are terminable by either party without any obligation or liability to a Tribune Entity or that do not require any future payments by a Tribune Entity.
(iib) Except as set forth in Section 3.15(bThe Contracts listed on Schedule 2.17(a) of the Radiancy Disclosure Schedule, as of that are not Newsday Contracts have an asterisk next to them.
(c) Tribune Parties have prior to the date hereofof this Agreement made available in the Data Room or delivered to Cablevision Parties copies of all written Material Contracts, together with all modifications, amendments and supplements thereto, have been delivered or made available.
(d) With such exceptions as, individually and in the aggregate, do not have, and are not reasonably likely to have, a Material Adverse Effect and except as listed on Schedule 2.17(d): (i) all of the Radiancy Business Newsday Contracts are in full force and effect and are valid and binding on and enforceable against Tribune or one of its Subsidiaries in accordance with their terms except and, to the extent that such enforceability (i) may be limited by bankruptcyKnowledge of Tribune Parties, insolvency, reorganization, moratorium or on and against the other similar laws relating to creditors’ rights generally, and parties thereto; (ii) neither Tribune nor any of its Subsidiaries is, nor to the Knowledge of Tribune Parties, is subject any other party to general principles of equity.
any Newsday Contract, in breach of, or default under, any such Newsday Contract; (iii) Except as set forth in Section 3.15(cneither Tribune nor any of its Subsidiaries has waived any right under any Newsday Contract; (iv) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which that, with the giving of notice or the passage lapse of time or both both, would constitute a breach in any material respect of of, or default under, any Newsday Contract; (v) neither Tribune nor any Business Contract nor, of its Subsidiaries has given to PHMD’s Knowledge, is or received from any other Party to Person, any such Business Contract in written notice or other written communication regarding any actual or alleged violation or breach in any material respect of or, or default under, any Newsday Contract that has not been resolved; and (vi) after giving effect to the consummation of the Closing, the Newco Sub will have substantially the same rights and benefits under such Business Contracteach Newsday Contract that Tribune Entities had prior thereto.
Appears in 1 contract
Sources: Formation Agreement (Tribune Co)
Contracts. (ia) Section 3.15(a2.10(a) of the Radiancy Seller Disclosure Schedule Letter sets forth an accurate a complete and correct list of the following Contracts each Contract (other than any Lease) to which any member of the Radiancy Group engaged in the Radiancy Business Seller is a Party party that relates to the Commercial Business or by which any member of the Radiancy Group is bound Transferred Products and that is primarily used in(each, or otherwise necessary for, the operation of the Radiancy Business (collectively, the a “Radiancy Business ContractsMaterial Contract”):
(i) each a Contract (other than purchase orders for Inventory) that involves performance of services with a remaining value or delivery of goods or materials by payments to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value Person in excess of $25,000500,000;
(ii) each a Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials relating to any member of the Radiancy Group engaged in the Radiancy Business of an amount partnership, commercial collaboration or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold joint venture or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, costs or liabilities Liabilities by Seller or any member of the Radiancy Group its affiliates with any other Person;
(iii) a Contract with any Governmental Entity, other than any MTAs or CTAs;
(iv) a Contract relating to the acquisition or disposition of any assets outside the ordinary course of the Commercial Business, including any securities purchase agreements, asset purchase agreements, merger agreements, business combination agreements and any earn-out or agreement for the deferred payment of purchase price entered into in connection therewith;
(v) a Transferred IP Agreement;
(vi) a Contract relating to the manufacture, packaging, storage, distribution or commercialization of the Transferred Products;
(vii) any agreement a Contract relating to indebtedness for borrowed money customer discounts, chargebacks, rebates distributions, service fees or extensions of creditadministrative fees;
(viii) each a Contract containing covenants that restrict relating to the business activity of any member research or development of the Radiancy GroupTransferred Products, includingexcluding any NDAs, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any PersonMTAs and CTAs;
(ix) a Contract between the Seller and any agreement providing for indemnification by any member of the Radiancy Groupentities set forth on Section 2.10(a)(ix) of the Seller Disclosure Letter relating to the testing, other than indemnification provided to customers auditing or vendors in controlling of the Ordinary Course of BusinessTransferred Products, including any pharmacovigilance agreements and quality agreements with any party;
(x) a Contract that: (A) contains a covenant by Seller not to compete or otherwise limits the freedom of Seller from engaging in the Commercial Business; (B) grants any employment rights of exclusivity to any Person; (C) grants any right of first refusal, first offer, first negotiation or consulting Contract with similar preferential right; (D) grants any Business Employee, “most favored customer,” “most favored supplier” or similar rights to any consultant Person; or contractor (E) contains a “requirements” obligation requiring Seller to purchase a designated portion of the Radiancy Business, other than at-will arrangements that do not include severance or “change any type of control” provisions; andmaterial;
(xi) each amendmenta Contract with a Material Supplier or Material Customer, supplementother than purchase orders or work orders, and modification (whether oral or written) in respect of any the ordinary course of the foregoingCommercial Business; or
(xii) a Contract that is otherwise material to the Commercial Business.
(iib) Except as set forth in Section 3.15(b) Each of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Material Contracts are is in full force and effect and are constitutes a legal, valid and binding agreement of Seller, and to the knowledge of Seller, each other party thereto, enforceable in accordance with their terms except its terms, subject to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws Laws of general application affecting or relating to the enforcement of creditors’ rights generally, and (ii) is subject to general principles of equity.
. Neither Seller, nor, to Seller’s knowledge, any other party thereto is (iiiwith or without notice or lapse of time, or both) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach or default in the performance, observance or fulfillment of any material obligation or material covenant contained in any material respect of or default under (and to PHMD’s KnowledgeMaterial Contract, no event has occurred nor does there exist any condition which with notice or upon the passage of time or both the giving of notice or both, would constitute a breach in any reasonably be expected to cause such material respect violation of or material default under or permit the termination or modification of, or acceleration of any obligation under) , any Business Contract norMaterial Contract. Seller has not given or received written or, to PHMDSeller’s Knowledgeknowledge, is oral notice to or from any other Party Person relating to any such Business actual or alleged, breach or default. Seller has not received any written or, to Seller’s knowledge, oral notice from a Third Party stating that such Third Party intends to terminate any Material Contract in breach in and Seller has not waived any material respect right under the Material Contracts. True and complete copies of all Material Contracts have been made available to Buyer, except to the extent such Material Contracts have been redacted to (i) enable compliance with Laws relating to antitrust or default under such Business Contractthe safeguarding of data privacy; (ii) comply with confidentiality obligations owed to Third Parties; or (iii) exclude information not related to the Commercial Business.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Merrimack Pharmaceuticals Inc)
Contracts. (ia) Section 3.15(a) of the Radiancy Disclosure Schedule sets forth an accurate list 2.20 lists each of the following Contracts Contractual Obligations to which the Company or any member of the Radiancy Group engaged in the Radiancy Business its Subsidiaries is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):bound:
(i) each Contract any Contractual Obligation (other or group of related Contractual Obligations) for the sale of Company Products or for the purchase of Company Products which will, by its terms, extend over a period of more than purchase orders for Inventoryone (1) that involves performance of services or delivery of goods or materials by any member of year after the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000date hereof;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services any Contractual Obligation with respect to a dealer, distributor, referral, or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy similar agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party Contractual Obligation providing for the Radiancy Business);
(v) each collective bargaining agreement and other Contract grant by the Company or any of its Subsidiaries of rights to market or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member sell Company Products on behalf of the Radiancy Group with Company to any other Person;
(iii) any Contractual Obligation pursuant to which a partnership or joint venture was established;
(iv) any Contractual Obligation made other than in the ordinary course of business (x) providing for the grant of any preferential rights of first offer or first refusal to purchase or lease any material asset, (y) providing for any exclusive right to sell or distribute, or otherwise relating to the sale or distribution of, any Company Product, or (z) pursuant to which any other Person is granted “most favored nations” pricing or customer status or similar with respect to any Company Products;
(v) any Contractual Obligation (other than “shrink wrap” and similar generally available commercial end-user licenses to software that have an individual acquisition cost of $25,000 or less per annum) pursuant to which the Company or any of its Subsidiaries is a party and pursuant to which the Company or any of its Subsidiaries licenses any Intellectual Property used in the development or licensing of the Company Products, in each case, that is material to the business of the Company and its Subsidiaries, taken as a whole;
(vi) any Contractual Obligation providing for outsourced development or joint development of any material items of Company Intellectual Property Rights;
(vii) any agreement relating Contractual Obligation providing for the sale, transfer, assignment or other total disposition of any Intellectual Property Right to indebtedness for borrowed money or extensions of creditfrom the Company or any Subsidiary, owned or previously owned by the Company or any Subsidiary in the past five (5) years;
(viii) each Contract any Contractual Obligation containing covenants any indemnification, warranty, support, maintenance, or service that restrict the business activity of any member represents a material obligation of the Radiancy GroupCompany and its Subsidiaries, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Persontaken as a whole;
(ix) any agreement providing lease, sublease or similar arrangement for indemnification the use by the Company or any member of its Subsidiaries of any Real Property or Personal Property owned by a third party, and any lease, sublease or similar arrangement for use by a third party of any Real Property or Personal Property owned, leased or subleased by the Company or any of its Subsidiaries, where the annual lease payments are greater than $100,000 (other than any lease of vehicles, office equipment or operating equipment made in the ordinary course of business) or where the Real Property or Personal Property is material to the business of the Radiancy Group, other than indemnification provided to customers Company or vendors in the Ordinary Course any of Businessits Subsidiaries;
(x) any Contractual Obligation under which the Company or any of its Subsidiaries has permitted any material asset to become subject to, or under which any material asset may become subject to, a Lien (other than a Permitted Lien);
(xi) any Contractual Obligation providing for the employment or consultancy of any Person on a full-time, part-time, consulting Contract or other basis or otherwise providing compensation or other benefits to any officer, director, employee or consultant in excess of $100,000 per year;
(xii) any collective bargaining agreement with any Business Employeelabor union;
(xiii) any Contractual Obligation that (A) purports to limit either the type of business in which the Company or any of its Subsidiaries (or, after the Closing, Parent or one of its Subsidiaries or Parent’s successors or assigns) may engage or the geographic area in which any of them may engage in any business, or to limit the solicitation by any of them of the employment of any Person or the ability of any of them to sell to or purchase from any Person, or (B) would require the disposition of any material assets or line of business of the Company and any of its Subsidiaries (or, after the Closing, Parent or any of its Subsidiaries or Parent’s successors or assigns);
(xiv) any outstanding general or special powers of attorney executed by or on behalf of the Company or any of its Subsidiaries;
(xv) any Contractual Obligation relating to the issuance of any equity interests or debt securities or any securities convertible into or exchangeable for equity interests or debt securities, or subscriptions, rights, warrants or options to acquire any equity interests or debt securities or any securities convertible into or exchangeable for equity interests or debt securities;
(xvi) any obligation to register any equity interests with any Governmental Authority;
(xvii) any Contractual Obligation relating to the acquisition by merger, consolidation, equity or asset purchase, or any consultant other manner of any Person or contractor a line of business of any Person outside the ordinary course of business, or relating to any joint venture or strategic partnership or alliance with another Person;
(xviii) any Contractual Obligation under which the Company or any of its Subsidiaries has advanced or loaned an amount to, or received a loan, note, or other instrument, agreement, or arrangement for or relating to the borrowing of money from, any of its Affiliates, shareholders, members, officers, managers, members of the Radiancy Businessboard of managers or board of directors, or employees;
(xix) any Contractual Obligation (or group of related Contractual Obligations) the performance of which mandates payment by the Company or any of its Subsidiaries of consideration in excess of $100,000 per annum over the remaining life of such Contractual Obligation, other than at-(A) any Contractual Obligation that is terminable by the Company or the applicable Subsidiary at will arrangements that do not include severance without material liability and on less than ninety (90) days’ notice and (B) purchase orders received in the ordinary course of business;
(xx) any Contractual Obligation (or “change group of control” provisionsrelated Contractual Obligations) the outstanding performance of which provides for receipt by the Company or any of its Subsidiaries of consideration in excess of $100,000 per annum over the remaining life of such Contractual Obligation;
(xxi) any mortgage, indenture, note, installment obligation or other instrument or agreement for or relating to any borrowing of money by the Company or any of its Subsidiaries in excess of $100,000; and
(xixxii) each amendmentany guaranty by the Company or any of its Subsidiaries, supplementor Affiliate thereof, and modification (whether oral or written) in respect of any obligation of the foregoing.another Person in excess of $100,000
(iib) Except as set forth The Company has made available to Parent copies of each Contractual Obligation listed on Schedule 2.20 that are accurate and complete, in Section 3.15(b) of the Radiancy Disclosure Scheduleeach case, as of amended or otherwise modified and in effect. Each Contractual Obligation required to be disclosed on Schedule 2.20 (the date hereof, all of the Radiancy Business Contracts are “Disclosed Contracts”) is in full force and effect and are is enforceable in accordance with their terms except against each party to such Contractual Obligation. No Company or Subsidiary, nor, to the extent that such enforceability (i) may be limited by bankruptcyCompany’s Knowledge, insolvencyany other party to any Disclosed Contract, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or violation of, or default under (under, or has repudiated any provision of, any Disclosed Contract, and to PHMD’s Knowledge, no event has occurred which with notice or the passage lapse of time or both would constitute become a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business any Disclosed Contract.
(c) Except as set forth in Schedule 2.20, all Disclosed Contracts are being performed without any party thereto relying on any force majeure provisions to excuse non-performance or performance delays arising out of the COVID-19 pandemic or COVID-19 Measures, except where such reliance on, non-performance, or delay was not and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole.
Appears in 1 contract
Contracts. (i) Section 3.15(a3(p) of the Radiancy Disclosure Schedule sets forth an accurate list of Letter lists the following contracts and other agreements (including the Contracts listed on Schedule 2(a)(iii)) related to the Acquired Assets to which any member of the Radiancy Group engaged in the Radiancy Business Seller is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):party:
(i) each Contract Any agreement (other than purchase orders or group of related agreements) for Inventory) that involves performance the lease of services real property or delivery of goods personal property to or materials by from any member of the Radiancy Group engaged in the Radiancy Business of an amount or value Person providing for lease payments in excess of $25,00010,000 singly or $30,000 in the aggregate;
(ii) each Contract Any agreement (or group of related agreements) for the purchase or sale of raw materials, commodities, supplies, products or other than purchase orders personal property, or for Inventory) that involves the furnishing or receipt of services, the performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value which will involve consideration in excess of $25,00010,000 singly, or $50,000 in the aggregate;
(iii) each Lease, rental Any agreement concerning a partnership or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)joint venture;
(iv) each Contract Any agreement (or group of related agreements) under which Seller has created, incurred, assumed or guaranteed any Indebtedness in respect excess of Intellectual Property (other than licenses for shrinkwrap, clickwrap $5,000 or other similar commercially available off-the-shelf software that under which it has not been modified or customized by imposed a third Party for Security Interest on any of the Radiancy Business)Acquired Assets;
(v) each collective bargaining Any agreement and other Contract to concerning confidentiality or with any labor union or other employee representative of a group of employeesnoncompetition;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, Any contract or liabilities by any member of the Radiancy Group arrangement with any other Personfederal, state or local government agency;
(vii) any agreement relating to indebtedness for borrowed money Any contract with customers or extensions otherwise regarding the provision of creditthe Services;
(viii) each Contract containing covenants that restrict Any agreement, contract, lease or license (or series of related agreements, contracts, leases, and licenses) involving payments of more than $10,000 relating to the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;Acquired Assets; and
(ix) any Any agreement providing for indemnification by any member of that would limit Buyer's rights to provide the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, Services or any consultant other services or contractor select subcontractors or other parties to provide the Services on Buyer's behalf. Seller has delivered to Buyer a correct and complete copy of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Except as set forth written agreement listed in Section 3.15(b3(p) of the Radiancy Disclosure Schedule. With respect to each such agreement: (A) the agreement is legal, as of the date hereof, all of the Radiancy Business Contracts are valid and binding and in full force and effect and are enforceable in accordance with their terms except on Seller; (B) Seller is not and, to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereofSeller's Knowledge, no Radiancy Group member other party is in breach or default in any material respect of or default under (and respect, and, to PHMD’s Seller's Knowledge, no event has occurred which with notice or the passage lapse of time or both would constitute a breach or default in any material respect respect, or permit termination, modification or acceleration, under the agreement; and (C) to the Knowledge of or default under) the Seller, no party has repudiated any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect provision of or default under such Business Contractthe agreement.
Appears in 1 contract
Contracts. (ia) Section 3.15(aSet forth on Schedule 3.10(a)(i)-(xix) of the Radiancy Disclosure Schedule sets forth an accurate is a true, correct and complete list of the following Contracts types of Contracts, to which any member of Farequest or the Radiancy Group engaged in Farequest Subsidiaries, as the Radiancy Business case may be, is a Party party or by which any member it or its properties are bound, or pursuant to which it obtains benefits or incurs obligations in the conduct of its businesses as of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, date hereof (the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”"MATERIAL CONTRACTS"):
(i) each Contract (other than Contracts for the purchase orders of goods by, or for Inventory) that involves performance the furnishing of services to, Farequest and the Farequest Subsidiaries that provide for, or delivery are reasonably likely to provide for, remaining payments by Farequest and the Farequest Subsidiaries in excess of goods $75,000 during the term of any such Contract, including all contracts with airlines;
(ii) Contracts between (x) Farequest or materials by any member Farequest Subsidiaries and (y) any of its Affiliates, officers or directors (or any Affiliates of any of the Radiancy Group engaged in foregoing);
(iii) Contracts containing any guaranties by Farequest or any Farequest Subsidiaries of the Radiancy Business obligations of any third parties;
(iv) any lease agreement between Farequest or any Farequest Subsidiaries and any Person for leasing equipment, which has an amount or aggregate rental value in excess of $25,00075,000 during the term of the lease;
(iiv) each Contract (other than purchase orders for Inventory) that involves performance of Contracts under which Farequest or the Farequest Subsidiaries provides consulting services or delivery of goods or materials to any member Person;
(vi) any employment, severance, non-competition, consulting or other Contracts with any current or former stockholder, director, officer or employee of Farequest and the Radiancy Group engaged Farequest Subsidiaries that has remaining payments by Farequest to such Person and cannot be terminated by Farequest without any remaining payments;
(vii) joint venture, partnership, stockholder, voting trust or other Contracts whereby Farequest or the Farequest Subsidiaries have agreed with any other Person (A) to enter into a joint business arrangement for profit or (B) to vote any shares of capital stock or other equity or beneficial interests in any other Person in any particular manner;
(viii) Contracts entered into since December 31, 2003 providing for the Radiancy Business acquisition or disposition of an amount or assets having a value in excess of $25,00075,000, other than such acquisitions or dispositions in the ordinary course of business, consistent with past practice;
(iiiix) each Lease, rental or occupancy agreement, license, installment licenses and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)relating to Material Intellectual Property;
(ivx) each Contract Contracts for the lease of personal property to or from any Person requiring payments in excess of $75,000;
(xi) Contracts requiring Farequest or any Farequest Subsidiaries to indemnify or hold harmless any Person in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for which the Radiancy Business)aggregate potential obligation is reasonably likely to exceed $75,000;
(vxii) each collective bargaining agreement and other Contract Contracts contemplating the referral of any services to any Person or with to Farequest or any labor union or other employee representative Farequest Subsidiaries, as the case may be, the performance of a group which involves consideration in excess of employees$75,000;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(viixiii) any agreement Contracts (A) relating to indebtedness for borrowed money or extensions other financing transactions or (B) restricting the ability of creditFarequest or any Farequest Subsidiaries to incur indebtedness for borrowed money or make any loan or advance or own, operate, sell, transfer, pledge or otherwise dispose of any assets;
(viiixiv) each Contract containing covenants that restrict the business activity Contracts under which any other Person has directly or indirectly guaranteed any indebtedness, liability or obligation of Farequest or any member of the Radiancy Group, including, but not limited to, any exclusivity covenantsFarequest Subsidiaries, or limit the freedom letter of credit issued to guarantee any member obligation of the Radiancy Group to engage in Farequest or any line Farequest Subsidiaries, or any vendor or customer of business Farequest or to compete with any PersonFarequest Subsidiaries;
(ixxv) any agreement providing for indemnification by any member mortgages, pledges, security agreements, deeds of the Radiancy Group, trust or other than indemnification provided to customers or vendors in the Ordinary Course of Businessdocuments granting a Lien;
(xxvi) Contracts (A) providing for the payment of any employment bonus or consulting Contract commission based on sales or earnings or (B) providing for any bonus or other payment based on the sale of Farequest or any Farequest Subsidiaries or any portion thereof or any other change of control of Farequest or any Farequest Subsidiaries;
(xvii) Contracts that provide for a payment, or that the terms and conditions that would otherwise govern the relationship of the parties thereto will be altered, upon a change of control of Farequest or any Farequest Subsidiaries;
(xviii) Contracts with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisionsGovernmental Authority; and
(xixix) each amendment, supplement, and modification (whether oral Contracts containing covenants which restrict Farequest or written) the Farequest Subsidiaries from engaging in any business or in any geographical area or containing any exclusivity provision with respect of to any of the foregoingbusiness or geographic area.
(iib) Except as set forth in Section 3.15(b) Farequest and the Farequest Subsidiaries have made available to RCG copies of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Material Contracts. Each of the Material Contracts are is in full force and effect and are is a valid and binding obligation of Farequest and the Farequest Subsidiaries, enforceable against Farequest and the Farequest Subsidiaries in accordance with their terms its terms, except to the extent that such as enforceability (i) thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium moratorium, or other similar laws Laws now or hereafter in effect relating to creditors’ ' rights generally, and (ii) is subject to generally or by general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity.
). To Farequest's Knowledge, each of the Material Contracts is a valid and binding obligation of the other parties thereto, enforceable against such other parties in accordance with its terms, except as enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, or other similar Laws now or hereafter in effect relating to creditors' rights generally or by general principles of equity (iii) regardless of whether enforceability is considered in a proceeding at law or in equity). Except as set forth in Section 3.15(c) of on Schedule 3.10(b), with respect to the Radiancy Disclosure Schedule, as of the date hereofMaterial Contracts, no Radiancy Group member is in breach in any material respect default or circumstances exist which, with the giving of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time time, or both both, would constitute a breach in material default by Farequest or any material respect of or default under) any Business Contract northe Farequest Subsidiaries or, to PHMD’s Farequest's Knowledge, is by the other party or parties thereto. None of the parties to any Material Contract has terminated such Material Contract, and Farequest and the Farequest Subsidiaries have not given, to its Knowledge, any oral or written notice of termination of any Material Contract or received, to its Knowledge, any oral or written notice of termination of any such Material Contract from any other Party party thereto, nor has Farequest or any Farequest Subsidiaries received, to its Knowledge, any oral or written notice of any such Business Contract in breach in party's intention to discontinue its business relationship with Farequest or any material respect Farequest Subsidiaries or written notice of such party's intention to reduce the volume of business it conducts with Farequest or default any Farequest Subsidiaries under such Business Contractany of the Material Contracts.
Appears in 1 contract
Sources: Merger Agreement (RCG Companies Inc)
Contracts. (i) Section 3.15(a) Seller has made available true and complete copies of the Radiancy Disclosure Schedule sets forth an accurate list each of the following Contracts to which any member types of contracts of the Radiancy Group engaged in Acquired Company and the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business Acquired Company Subsidiaries (collectively, the “Radiancy Business Applicable Contracts”):
): (i) each Contract any written agreement (other than purchase orders for Inventoryinsurance policies or contracts of assumed or ceded reinsurance written in the ordinary course of business) that involves performance of services or delivery of goods or materials by any member contains obligations of the Radiancy Group engaged in the Radiancy Business of an amount Acquired Company or value any Acquired Company Subsidiary in excess of $25,000;
500,000 in any one fiscal year; (ii) each Contract (other than purchase orders any agreement for Inventory) that involves performance the incurrence of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value indebtedness for borrowed money involving amounts in excess of $25,000;
1,000,000, other than agreements with Affiliates which are to be terminated pursuant to Section 4.8; (iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and any non-competition agreement (other Contract affecting than any Permit granted by any Governmental Entity) which limits in any material respect the ownership of, leasing of, title to, use ofmanner in which, or any leasehold the localities in which, the business of the Acquired Company or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
the Acquired Company Subsidiaries is conducted; (iv) each Contract any material joint venture or partnership agreement, other than in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap joint ventures or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for investments held in an investment portfolio and reflected on the Radiancy Business);
SAP Statements; (v) each collective bargaining any ceded reinsurance agreement with respect to which an Acquired Company or Acquired Company Subsidiary recorded a reinsurance recoverable at 12/31/09; and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) any Lease. For the avoidance of doubt, Seller provides no representation or warranty as to the collectability of any reinsurance recoverable or other amounts due or payable under any ceded reinsurance agreement to which the Acquired Company or any Acquired Company Subsidiary is a party whether or not such reinsurance recoverable is reported as an asset or contra-liability in the Final 2010 Financial Statements or any other book or record of the Acquired Company or the Acquired Company Subsidiaries. Each Applicable Contract is the legal, valid and binding obligation of the Acquired Company or Acquired Company Subsidiary that is a party thereto and, to the Knowledge of Seller, of each joint venture, partnershipother party thereto, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are is enforceable in accordance with their terms except its terms, subject to the extent that such enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to Laws affecting the enforcement of creditors’ rights generally, generally and (ii) is subject to general equitable principles (regardless of whether considered in a proceeding of law or in equity.
(iii) Except as set forth ). Neither the Acquired Company nor any Acquired Company Subsidiary that is a party thereto nor, to the Knowledge of Seller, any other party, is in Section 3.15(c) material violation or default of any term of any such Applicable Contract and to the Radiancy Disclosure Schedule, as Knowledge of the date hereofSeller, no Radiancy Group member is in breach in any material respect of condition or default under (and to PHMD’s Knowledge, no event has occurred exists which with the giving of notice or the passage of time time, or both both, would constitute a breach in material violation or default of any Applicable Contract by the Acquired Company or any Acquired Company Subsidiary, as the case may be, or any other party thereto or permit the termination, modification, cancellation or acceleration of performance of any material respect obligation of the Acquired Company or default under) any Business Contract norAcquired Company Subsidiary, to PHMD’s Knowledgeas the case may be, is or any other Party party to any such Business Contract in breach in any material respect of or default under such Business the Applicable Contract.
Appears in 1 contract
Contracts. (i) Section 3.15(a) Except as set forth in Schedule 5.14 or any other Schedule hereto, as of the Radiancy Disclosure Schedule sets forth an accurate list date of this Agreement, neither the Companies nor any of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business Subsidiaries is a Party party to or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):by:
(ia) each Contract any contract for the purchase by the Companies or such Subsidiary of supplies or equipment which the Companies or such Subsidiary reasonably anticipates will involve the annual payment of more than $250,000 after the date hereof;
(b) any contract (other than purchase orders for Inventoryinsurance or reinsurance contracts or agreements) that involves performance the annual payment by the Companies or such Subsidiary of services more than $250,000 or delivery receipt of goods annual revenues by the Companies or materials by such Subsidiary of more than $250,000;
(c) any member of the Radiancy Group engaged in the Radiancy Business of an amount loan agreements, promissory notes, indentures, bonds, security agreements, guarantees or value obligations for borrowed money or other instruments involving indebtedness in excess of $25,000;
250,000 (ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment excluding intercompany indebtedness and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000non-trade accounts);
(ivd) each Contract in respect of Intellectual Property (other than licenses for shrinkwrapany partnership, clickwrap joint venture or other similar commercially available off-the-shelf software that has not been modified agreement or customized by a third Party for arrangement with any entity other than the Radiancy Business)Companies or one of the Subsidiaries;
(ve) any agreement containing any covenant or provision prohibiting or limiting the ability of any of the Companies or any Subsidiary from conducting, in any material respect, its business as currently conducted, including (i) selling any product or service, (ii) engaging in any line or type of business and (iii) competing with or obtaining products or services from any Person or limiting the ability of or prohibiting any Person from competing with or providing products or services to any of the Companies or the Subsidiaries, in each collective bargaining agreement and other Contract to case excluding agreements that would not bind the Companies or with any labor union or other employee representative of a group of employeesthe Subsidiaries following the Closing;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ixf) any agreement providing for indemnification by of any member officer or director of any the Radiancy Group, Companies or the Subsidiaries (other than indemnification provided to customers certificates of incorporation, bylaws or vendors in the Ordinary Course of Businessother similar organizational documents);
(xg) any employment agreement for the acquisition or consulting Contract sale, directly or indirectly (by merger or otherwise) of assets (whether tangible or intangible) other than in the ordinary course of business consistent with any Business Employeepast practice, or the securities of another Person and any consultant agreement providing for an obligation to provide funds to, or contractor of the Radiancy Businessmake an investment in, other than at-will arrangements that do not include severance or “change of control” provisions; andany Person;
(xih) each amendment, supplement, and modification any written agreement with Aon or any of its Affiliates; or
(i) any agreement that is an outstanding power of attorney or provides for an obligation of any Company or Subsidiary (whether oral absolute, accrued, contingent or writtenotherwise) as guarantor, surety, co-signer, endorser, co-maker, indemnitor or otherwise in respect of any Person that would reasonably be expected to result in payments in excess of the foregoing$250,000.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contract.
Appears in 1 contract
Sources: Stock Purchase Agreement (Aon Corp)
Contracts. (ia) Except for this Agreement and the Other Transaction Documents or set forth on Section 3.15(a6.10(a) of the Radiancy RJS Disclosure Schedule sets forth an accurate list of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used inLetter, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Scheduleno RJS Subsidiary is, as of the date hereof, all a party to or bound by (other than Contracts solely among the RJS Subsidiaries):
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act), as such term would be applied to the RJS Subsidiaries, taken as a whole, as if a separate entity;
(ii) any Contract containing a material covenant not to compete, for “most favored nation” treatment, or exclusivity arrangement in favor of a third party or otherwise purports to limit in any material respect either the type of business in which any RJS Subsidiary may engage or the manner or geographic area in which any of them may so engage in any business;
(iii) any Contract containing an exclusive license to Intellectual Property (whether or not such license is limited to a geographic area or field);
(iv) any Contract that limits or otherwise restricts the ability of any RJS Subsidiary to pay dividends or make distributions to its members or shareholders, other than pursuant to the Financings;
(v) any Contracts under which any RJS Subsidiary is or may be liable for Indebtedness for money borrowed (whether evidenced by notes, debentures, bonds or other similar instruments or otherwise) or evidencing obligations as obligor, guarantor or surety of any other Person (other than the RJS Subsidiaries) or pursuant to which a Security Interest is imposed upon the Assets of any RJS Subsidiary in respect of Indebtedness for borrowed money (or a guarantee thereof) other than, in each case, pursuant to the Financings;
(vi) any Contract relating to the formation, creation, governance or control of any partnership, joint venture or similar arrangement that is material to the businesses of any RJS Subsidiary as currently conducted;
(vii) any material Contract for the supply of water or utility services, in each case, that relates to the use, ownership, operation or maintenance of any RJS Facility;
(viii) any interconnection Contract that relates to any RJS Facility;
(ix) any energy management agreement or any other Contract providing for the management or operation of any RJS Facility (and/or the output thereof) by a third party;
(x) any Energy Marketing and Trading Contract (A) with a delivery/settlement period that ends later than four (4) calendar years following the commencement of the Radiancy Business calendar year when delivery begins, (B) that exceeds the aggregate nominal energy, capacity, fuel or other product reasonably able to be produced or consumed by the RJS Facilities, (C) which are speculative in nature, (D) Structured Transactions consisting of load-following arrangements for the supply of power and energy with a term of greater than two (2) years, (E) Structured Transactions consisting of agreements to supply capacity, underlying or load shape energy and/or power basis ▇▇▇▇▇▇ to municipalities or cooperatives or (F) Structured Transactions consisting of heat-rate call options, tolling agreements, and similar arrangements, or weather or other non-standard options and derivatives, in each case, that are not Hedging Trading activities;
(xi) any Contract (other than an Energy Marketing and Trading Contract) with required aggregate payments to or from any RJS Subsidiary in excess of $15 million;
(xii) any material Contract that contains a “change of control” provision to which any RJS Subsidiary is a party or is subject;
(xiii) any Contract that is a settlement, conciliation or similar agreement with any Governmental Authority or other Person in respect of any material matter pursuant to which any RJS Subsidiary will be required after the date of this Agreement to pay any consideration in excess of $5 million;
(xiv) any Contract set forth or required to be set forth in Section 6.10(d) of the RJS Disclosure Letter;
(xv) any Contract that relates to the acquisition or disposition of any business or generation facility, whether by merger, sale of stock, sale of assets or otherwise (A) for aggregate consideration in excess of $15 million or (B) with respect to which any RJS Subsidiary has any material outstanding obligation, including any indemnification obligations; and
(xvi) any lease set forth or required to be set forth in Section 6.18(a) of the RJS Disclosure Letter. Except for Contracts solely among the RJS Subsidiaries, all Contracts of the type described in this Section 6.10(a) and any other such Contracts that may be entered into by any RJS Subsidiary after the date hereof and on or prior to the Effective Time in accordance with Section 7.02, together with the RJS Leases are referred to herein as “RJS Material Contracts.” Complete and correct copies (including all material amendments, modifications, extensions, renewals or waivers with respect thereto) of all RJS Material Contracts existing as of the date hereof have been provided, or made available, to Parent.
(b) Each RJS Material Contract, is the legal, valid and binding obligation of, and enforceable against, the applicable RJS Subsidiary, and, to the Knowledge of RJS, each other party thereto, and is in full force and effect and are enforceable in accordance with their terms its terms, except to the extent that such enforceability (i) may for terminations or expirations at the end of the stated term, (ii) such failures to be legal, valid and binding or to be in full force and effect as has not had and would not reasonably be expected to have, individually or in the aggregate, an RJS MAE and (iii) as limited by Laws of general application relating to bankruptcy, insolvency, reorganization, moratorium or other similar laws Laws, now or hereafter in effect, relating to creditors’ rights generallygenerally and the application of rules of Law governing equitable remedies of specific performance, injunctive relief and (ii) is subject to general principles of equityother equitable remedies.
(iiic) Except as set forth Except, in Section 3.15(c) each case, where such violation, breach, default, event of default, right of termination, cancellation, guaranteed payment, acceleration of obligation or loss of benefit, has not had and would not reasonably be expected to have, individually or in the Radiancy Disclosure Scheduleaggregate, as of the date hereofan RJS MAE, no Radiancy Group member each RJS Subsidiary which is a party to each RJS Material Contract is in breach in any material respect compliance with all terms and requirements of or default under (each such RJS Material Contract, and to PHMD’s Knowledge, no event has occurred which that, with notice or the passage of time time, or both both, would constitute a breach in any material respect of or default underby such RJS Subsidiary, or result in a right of termination, cancellation, guaranteed payment or acceleration of any obligation or the loss of a benefit under any such RJS Material Contract. To the Knowledge of RJS, no other party to any RJS Material Contract is in breach or default (nor has any event occurred which, with notice or the passage of time, or both, would constitute such a breach or default) under any RJS Material Contract, in each case where such violation, breach, default or event of default would reasonably be expected to have, individually or in the aggregate, an RJS MAE.
(d) Section 6.10(d) of the RJS Disclosure Letter lists each Contract between or among (i) any Business RJS Subsidiary, on the one hand, and (ii) any Affiliate thereof (other than an RJS Subsidiary), any Affiliated RJS Person (other than any Contract norwith any Affiliated RJS Person on an arms-length basis) or TPM, to PHMD’s Knowledgeon the other hand, is any other Party to any such Business Contract that will remain in breach in any material respect of or default under such Business Contractplace following the Closing.
Appears in 1 contract
Contracts. (ia) Section 3.15(a2.12(a) of the Radiancy Surge Disclosure Schedule sets forth an accurate list lists each Contract in effect as of the date hereof (together with all amendments and supplements thereto) to which Surge is a party, by which Surge or any of its assets is bound, and that falls within any of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):categories:
(i) each Contract (other than all Contracts that require Surge to purchase orders for Inventory) its total requirements of any product or service from a third party or that involves performance of services contain “take or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000pay” provisions;
(ii) each Contract (other than purchase orders all Contracts that provide for Inventory) that involves performance the indemnification by Surge of services any Person or delivery the assumption by Surge of goods or materials to any member Liability of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000any Person;
(iii) each Leaseall Contracts that relate to the acquisition or disposition of any business, rental a material amount of securities or occupancy agreement, license, installment and conditional sale agreement, and assets of any other Contract affecting the ownership of, leasing of, title to, use of, Person or any leasehold or other interest in, any personal real property (except personal property leases and installment and conditional sales agreements having aggregate payments whether by merger, sale of less than $50,000securities, sale of assets or otherwise);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrapall distributor, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by dealer, Surge Manufacturer’s representative, franchise, agency, Promotion, market research, marketing consulting and advertising Contracts to which Surge is a third Party for the Radiancy Business)party;
(v) each collective bargaining agreement and other Contract all Contracts relating to or with any labor union or other employee representative of a group of employeesIndebtedness (including guarantees);
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group all Contracts with any other PersonGovernmental Entity;
(vii) any agreement relating to indebtedness for borrowed money Contract under which Surge has advanced or extensions of creditloaned any other Person any amounts;
(viii) each any Contract containing covenants that restrict would prohibit or is otherwise reasonably likely to materially delay the business activity of any member consummation of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any PersonTransactions;
(ix) any agreement Contract providing for indemnification by the settlement of any member of the Radiancy GroupProceeding against Surge pursuant to which Surge has any existing material obligations, other than indemnification provided to customers or vendors in the Ordinary Course solely obligations of Businessconfidentiality;
(x) any employment lease or consulting Contract with any Business Employeesimilar agreement pursuant to which: (A) Surge is the lessee of, or holds or uses, any consultant machinery, equipment, vehicle or contractor other tangible personal property owned by any Person for an annual rent in excess of $50,000 or (B) Surge is the Radiancy Businesslessor of, other than at-will arrangements that do not include severance or “change makes available for use by any Person, any tangible personal property owned by it for an annual rent in excess of control” provisions; and$50,000;
(xi) each amendmentany Contract relating to an Affiliate Transaction or Interest;
(xii) all Contracts that limit or restrict Surge (or Surviving Surge after the Closing) from competing, supplementengaging in any line of business, developing, marketing or distributing products or services or in any geographic area or with any Person or that would otherwise materially limit the freedom of Surviving Surge from engaging in any material line of business after the Closing or from acquiring any interest in another Person;
(xiii) any Contract that provides any customer with pricing, discounts or benefits that change based on the pricing, discounts or benefits offered to other customers or clients of Surge, including any Contract which contains a “most favored nation” provision;
(xiv) any Contracts that provide for any joint venture, partnership, co-investment or similar arrangement by Surge;
(xv) any Contracts that obligate Surge to make capital expenditures after the date of this Agreement in an amount greater than $100,000;
(xvi) any Contract that grants any right of first refusal, right of first offer, or similar right with respect to any material assets, rights, or properties of Surge (or Surviving Surge) after the Closing;
(xvii) any Contract (excluding purchase orders, statements of work, confidentiality agreements or similar ancillary documents unless such purchase orders or statements of work are the sole Contract with such customer) with a Material Customer;
(xviii) any master purchase, supply or service Contract (excluding purchase orders, statements of work, confidentiality agreements or similar ancillary documents unless such purchase orders or statements of work are the sole Contract with such supplier) with a Material Supplier;
(xix) any Contract pursuant to which Surge is a recipient of a license, sublicense (of any tier), release of claims, covenant not to ▇▇▇ or assert, grant of immunity from suit, an agreement to coexist, or other right under any Intellectual Property Rights (other than “off-the-shelf” or “shrink-wrap” licenses for non-customized commercially available software);
(xx) any Contract pursuant to which Surge is a grantor of a license, sublicense (of any tier), release of claims, covenant not to ▇▇▇ or assert, grant of immunity from suit, agreement to coexist, or other right under any Intellectual Property Rights;
(xxi) any Contract pursuant to which Surge has (a) sold, assigned to a third party any Intellectual Property Right, or (b) purchased or received an assignment from any other Person any Intellectual Property Right (other than Contracts with employees and contractors on Surge’s standard form for such employees or contractors, where a copy of such standard form has been provided to Motor prior to the date hereof);
(xxii) any Contract relating to the Leased Real Property;
(xxiii) any agreement relating to any interest rate, foreign exchange, derivatives or hedging transactions;
(xxiv) any Contract (or group of related Contracts) (excluding purchase orders, and modification (whether oral statements of work, unless such purchase orders or writtenstatements of work are the sole Contract with the counterparty thereto) in respect of any of the foregoing.
(ii) Except as set forth in to which Surge is party and not previously required to be disclosed on Section 3.15(b2.12(a) of the Radiancy Surge Disclosure Schedule, under which Surge: (A) sold or purchased (or agreed to sell or purchase) products or services pursuant to which the aggregate of payments due to or from Surge, respectively, in the 12 months ended March 31, 2019, were equal to or exceeded $250,000; (B) reasonably anticipates that it will be selling or purchasing products or services during the 12 months ended March 31, 2019, in which the aggregate payments due to or from Surge, respectively, for such products or services are reasonably expected to equal or exceed $250,000; or (C) reasonably anticipates that it will be selling or purchasing products or services for consideration of $500,000 in the aggregate over the life of the Contract;
(xxv) any Contract with any HCP; or
(xxvi) any other Contract not previously disclosed pursuant to this Section 2.12 that would be required to be filed as an exhibit to a Form 10-K filed by Surge as of the date hereof, all of this Agreement pursuant to the reporting requirements of the Radiancy Business Contracts are Exchange Act if Surge were subject to such reporting requirements. Each Contract of the type described in this Section 2.12(a) is referred to herein as a “Surge Material Contract”. True, correct and complete copies of each Surge Material Contract, including all amendments and supplements thereto and waivers thereunder have been made available by Surge to Motor prior to the date of this Agreement.
(b) Each Surge Material Contract is legally valid and binding on Surge and, to the Knowledge of Surge, is a legally valid and binding obligation of the other parties thereto, in accordance with its terms and is in full force and effect and are enforceable in accordance with their terms except effect. None of Surge or, to the extent that such enforceability (i) may be limited by bankruptcySurge’s Knowledge, insolvency, reorganization, moratorium or any other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member party thereto is in material breach in any material respect or violation of or material default under (and nor is Surge or, to PHMDSurge’s Knowledge, any party thereto, alleged to be in material breach or violation of or material default under), or has provided or received any notice of any intention to terminate, any Surge Material Contract. To the Knowledge of Surge, no event or circumstance has occurred which that, with notice or the passage lapse of time or both both, would constitute a breach an event of default under any Surge Material Contract or result in any material respect party having the right to terminate such Surge Material Contract or would cause or permit the acceleration or other changes of any right or default under) obligation or the loss of any Business Contract norbenefit thereunder. Since January 1, to PHMD’s Knowledge2016, is any other Party to any such Business Contract in breach in Surge has not waived any material respect of or default rights under such Business a Surge Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Misonix Inc)
Contracts. (a) The EPI Disclosure Schedule contains a complete list of all currently effective written or oral (i) Section 3.15(alicense or other agreements relating in whole or in part to Intellectual Property (including any license or other agreement under which EPI has the right to use any of the same owned or held by any third person) (the "EPI LICENSES"); (ii) employment contracts, arrangements or policies (including without limitation any collective bargaining contract or union agreement) of EPI which may not be immediately terminated without penalty (or any augmentation or acceleration of benefits); (iii) leases, sales contracts and other agreements with respect to any property, real or personal, of EPI, except for leases of personal property involving less than $5,000 individually and $15,000 in the Radiancy Disclosure Schedule sets forth an accurate list aggregate and contracts with customers and suppliers not required to be disclosed under subsection (ix) below; (iv) contracts or commitments for capital expenditures or acquisitions in excess of $5,000 for one project or set of related projects and $15,000 in the aggregate; (v) agreements, contracts, indentures or other instruments relating to the borrowing of money, or the guarantee of any obligation (third party or otherwise) for the borrowing of money; (vi) contracts or agreements providing for any covenant not to compete by EPI or otherwise restricting in any way the ability of EPI to engage in any business activity (including a description of the following Contracts businesses to which the covenant not to compete applies), as well as any member comparable covenants running in favor of the Radiancy Group engaged in the Radiancy Business is a Party EPI; (vii) contracts or by which agreements relating to consultancies, professional retentions, agency, sales or distributorship arrangements pertaining to EPI or its products or activities; (viii) contracts, agreements or commitments requiring EPI to indemnify or hold harmless any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):
(i) each Contract Person (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged entered into in the Radiancy Business ordinary course of an amount business and consistent with past practice); and (ix) all contracts with any customer or value supplier listed on the EPI Disclosure Schedule pursuant to Section 3.21 hereto other than outstanding purchase orders for less than $10,000 in excess the ordinary course of $25,000;
business of EPI; (ii) each Contract all agreements, arrangements or commitments to which EPI is a party, whether or not listed on the EPI Disclosure Schedule, being hereinafter referred to as "EPI CONTRACTS"). True and correct copies of all the EPI Contracts listed on the EPI Disclosure Schedule have been furnished to Equity. All EPI Contracts (other than purchase orders for Inventory) that involves performance leases of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of involving less than $50,000);
5,000 individually and $15,000 in the aggregate and other EPI Contracts the failure of which to be valid and binding would not reasonably be expected to have a Material Adverse Effect) are valid and binding in all material respects (iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrapsubject to applicable bankruptcy, clickwrap insolvency, moratorium or other similar commercially available off-the-shelf software laws affecting or relating to the enforcement of creditors' rights generally); EPI has duly performed its obligations thereunder in all material respects to the extent such obligations have accrued; and no breach or default thereunder by EPI or, to the knowledge of EPI or any EPI Holder, any other party thereto has occurred that has not been modified would reasonably be expected to impair the ability of EPI to enforce any material rights thereunder or customized by a third Party for the Radiancy Business);which
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(iib) Except as set forth in Section 3.15(b) of the Radiancy EPI Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts there are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equityno unsatisfied minimum guarantees under any EPI License.
(iiic) Except as set forth in Section 3.15(c) The consummation of the Radiancy Disclosure Schedule, as of Acquisition and the date hereof, no Radiancy Group member is in breach other transactions contemplated hereby will not result in any material respect violation or termination of, default or loss of benefit under, or default under (and give rise to PHMD’s Knowledgea right of termination under, the terms of any EPI Contract. There are no event has occurred which with notice negotiations pending or the passage of time or both would constitute a breach in progress to revise any material respect terms of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business ContractEPI Contracts.
Appears in 1 contract
Contracts. (ia) Section 3.15(a5.13(a) of the Radiancy Seller Disclosure Schedule sets forth an accurate list as of the date hereof, each of the following Business Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Material Contracts”):
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000Employee Agreement;
(ii) each any Contract (other than purchase orders for Inventory) that involves performance of services with any customer or delivery of goods or materials to any member of advertiser under which the Radiancy Group engaged in the Radiancy Business of an amount or value Seller received revenues in excess of $25,000250,000 during the last year;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other any Contract affecting for capital expenditures in excess of $100,000 during the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)last year;
(iv) each any services Contract (or portion thereof constituting a Business Contract) involving payments in respect excess of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for $100,000 during the Radiancy Business)last year;
(v) each collective bargaining agreement and any other Contract to that involves annual commitments in excess of $100,000 that cannot be terminated by the Seller without penalty upon prior notice of 60 days or with any labor union or other employee representative of a group of employeesless;
(vi) each joint venture, partnership, and other any Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other PersonGovernmental Authority;
(vii) any agreement relating Contract related to or evidencing indebtedness for borrowed money of the Business or extensions of creditpledging any Purchased Assets as security for any such indebtedness;
(viii) each any consulting Contract containing covenants that restrict the business activity is not terminable on less than 3 months’ advance notice and that includes annual compensation in excess of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person$200,000;
(ix) any agreement Contract providing for material indemnification by rights or obligations to or from any member of Person with respect to liabilities relating to the Radiancy GroupBusiness or the Purchased Assets, other than indemnification provided to customers or vendors Contracts entered into in the Ordinary Course ordinary course of Businessbusiness;
(x) any employment or consulting Contract with any labor union;
(xi) any Contract under which a license of Intellectual Property material to the conduct of the Business Employee, is granted to or by the Seller or any consultant other Contract under which a material restriction is imposed on the use of any Business Intellectual Property, including any covenant not to ▇▇▇ or contractor co-existence agreement that relates to Business Intellectual Property, but in each case excluding (i) any license granted to the Seller of commercially available “off-the-shelf” software licensed to the Radiancy Business, other Seller in object code form for an aggregate license fee of no more than at$25,000 and (ii) any non-will arrangements that do not include severance exclusive licenses granted to customers and syndication partners in the ordinary course of business;
(xii) any Contract relating to settlement of any material administrative or “change of control” provisionsjudicial proceedings within the past five years; and
(xixiii) each amendmentany partnership or joint venture agreement, supplementmerger agreement, and modification (whether oral or written) in respect of any of the foregoingmaterial asset or stock purchase or divestiture Contract.
(iib) Except as set forth in Section 3.15(b5.13(b) of the Radiancy Seller Disclosure ScheduleSchedule sets forth, as of the date hereof, all each of the Radiancy following Contracts of the Seller used in, or related to, the Business Contracts are in full force and effect and are enforceable in accordance with their terms except to or the extent that such enforceability Purchased Assets:
(i) may be limited by bankruptcyany Contract granting to any Person any right of first refusal, insolvencyright of first offer, reorganization, moratorium option or other similar laws relating preferential right with respect to creditors’ rights generally, and the purchase of the Purchased Assets; and
(ii) is subject any Contract (A) restricting any right of the Seller, with respect to general principles the Business, to compete with any Person or in any line of equitybusiness or geographic area or during any period of time or (B) restricting any right of the Seller, with respect to the Business, to sell to or purchase from any Person, or that grants the other Person “most favored nation” status with respect to the Business.
(iiic) Except as set forth in Section 3.15(c) of To the Radiancy Disclosure ScheduleSeller’s Knowledge, as of the date hereof, no Radiancy Group member (i) each Material Contract is in full force and effect, except where the failure to be in full force and effect would not, individually or in the aggregate, reasonably be expected to be material to the Business or the Purchased Assets, and (ii) neither the Seller, nor any other party, is in breach in any material respect of or default under violation of, or (and to PHMD’s Knowledge, no event has occurred which with or without notice or the passage lapse of time or both would constitute a breach in any material respect of or both) default under) any Business Contract norunder any, to PHMD’s KnowledgeMaterial Contract, is any other Party to except for any such breaches or defaults that would not, individually or in the aggregate, reasonably be expected to be material to the Business Contract in breach in or the Purchased Assets. The Seller has delivered or made available to the Purchaser true and complete copies of all written Material Contracts, including any material respect of or default under such Business Contractamendments thereto.
Appears in 1 contract
Contracts. (ia) Section 3.15(a) 2.20 of the Radiancy Company Disclosure Schedule sets forth an accurate list lists, by reference to the applicable subsection of this Section 2.20, all material Contracts of the following Contracts to which Company or any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business its Subsidiaries (collectively, the “Radiancy Listed Business Contracts”):), including:
(i) each Contract all employment or other contracts (including non-competition, confidentiality, loans to employees, directors or officers, severance or indemnification agreements as well as any collective bargaining agreement or other than purchase orders for Inventorylabor union contracts or agreements) that involves performance with or in respect of services any employee or delivery of goods current or materials by any member former officer or director or stockholder of the Radiancy Group engaged in the Radiancy Business of an amount Company or value in excess of $25,000any Subsidiary;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000all consulting contracts;
(iii) each Leaseinstruments for borrowed money (including any indentures, rental or occupancy agreementguarantees, licenseloan agreements, installment sale and leaseback agreements, mortgages, pledges, hypothecations, deeds of trust, conditional sale agreementor title retention agreements, and other Contract affecting the ownership of, leasing of, title to, use of, security agreements or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000equipment financing obligations);
(iv) each Contract in respect agreements for acquisitions or dispositions (by merger, purchase or sale of Intellectual Property (other than licenses for shrinkwrapassets or stock or otherwise) of material assets, clickwrap as to which the Company or other similar commercially available off-the-shelf software that any Subsidiary has not been modified continuing obligations or customized by a third Party for the Radiancy Business)rights;
(v) each collective bargaining agreement joint venture or partnership agreements, licensing arrangements, Contracts for sharing of profits or proprietary information, licensing and other Contract to or with any labor union or other employee representative of a group of employeesdistribution Contracts;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, purchase Contracts or liabilities by any member agreements giving rise to Liabilities of the Radiancy Group with Company or any Subsidiary;
(vii) guarantees, suretyships, indemnification, contribution agreements or other sources of contingent liability in respect of any indebtedness or obligations of any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity all leases of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Personpersonal property;
(ix) any agreement all Contracts providing for indemnification payments by or to the Company or any member Subsidiary in excess of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business$500,000 per year;
(x) all Contracts obligating the Company or any employment Subsidiary to provide or consulting Contract obtain products or services for a period of one year or more;
(xi) all Contracts containing covenants purporting to limit the Company’s or any Subsidiary’s freedom to compete with any Business EmployeePerson or in any geographic area;
(xii) all Contracts for construction or the purchase of real estate, improvements, equipment, machinery and other items which constitute capital expenditures or which involve or are reasonably expected to involve capital expenditures;
(xiii) all agreements, Contracts, licenses or arrangements (a) granting or obtaining any right to use or practice any rights under any Intellectual Property (other than non-customized software subject to customary “shrinkwrap” or “click-through” type contracts) or (b) restricting the Company’s or any Subsidiary’s rights to use, practice or register any Intellectual Property, or permitting other Persons to use, practice or register any consultant Intellectual Property owned by the Company or contractor any Subsidiary;
(xiv) any agreement or Contract not terminable or cancelable by the Company or any Subsidiary upon notice of not longer than 60 days and without liability, penalty or premium;
(xv) any Contract between the Company or any Subsidiary, on the one hand, and any director, officer or Affiliate of the Radiancy BusinessCompany or any Subsidiary, on the other than at-will arrangements that do not include severance hand;
(xvi) any exclusive sales representative or “change of control” provisionsexclusive distribution Contract; and
(xixvii) each amendment, supplement, and modification (whether oral any agreement or written) Contract which was not made in respect the ordinary course of any of the foregoingbusiness consistent with past practice.
(iib) Except as set forth in Section 3.15(b) The Company has heretofore provided to Purchaser a true and complete copy of each Listed Business Contract (together with all amendments thereto). Each Listed Business Contract is a legal, valid and binding obligation of the Radiancy Disclosure ScheduleCompany or the applicable Subsidiary and, as to the knowledge of the date hereofCompany, all of the Radiancy Business Contracts are in full force and effect and are other parties thereto, enforceable against such parties in accordance with their its terms except to the extent that such as enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other reorganization and similar laws relating to creditors’ rights generally, affecting creditors generally and (ii) is subject to general principles by the availability of equity.
(iii) Except as set forth in Section 3.15(c) equitable remedies. None of the Radiancy Disclosure ScheduleCompany, as any Subsidiary or, to the knowledge of the date hereofCompany, no Radiancy Group member any other party thereto, is in default, violation or breach in any material respect of or default under (any Listed Business Contract, and to PHMD’s Knowledge, no event has occurred which and is continuing that constitutes or with notice or the passage of time would constitute, a default, violation or both would constitute a breach in any material respect of or default under) under any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Listed Business Contract.
Appears in 1 contract
Contracts. (ia) Section 3.15(a2.10(a) of the Radiancy Seller Disclosure Schedule Letter sets forth an accurate a complete and correct list of the following Contracts each Contract to which Seller or any member of the Radiancy Group engaged in the Radiancy Business its Affiliates is a Party or by which any member of party that relates to the Radiancy Group is bound Acquired Assets and that is primarily used in(each, or otherwise necessary for, the operation of the Radiancy Business (collectively, the a “Radiancy Business ContractsMaterial Contract”):
(i) each a Contract (other than purchase orders providing for Inventory) that involves performance of services payments by or delivery of goods or materials by to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value Person in excess of $25,000100,000 over any twelve (12) month period;
(ii) each a Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials relating to any member of the Radiancy Group engaged in the Radiancy Business of an amount partnership, commercial collaboration or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold joint venture or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, costs or liabilities Liabilities by Seller or any member of the Radiancy Group its Affiliates with any other Person;
(iii) a Contract with any Governmental Entity, other than any MTAs or CTAs;
(iv) a Contract relating to the acquisition or disposition of any assets outside the Ordinary Course, including any securities purchase agreements, asset purchase agreements, merger agreements, business combination agreements and any earn‑out or agreement for the deferred payment of purchase price entered into in connection therewith;
(v) an Assigned Contract;
(vi) a Contract relating to the manufacture, storage, distribution or commercialization of the Transferred Products;
(vii) any agreement a Contract relating to indebtedness for borrowed money the research or extensions development of creditthe Transferred Products, excluding any NDAs, MTAs and CTAs;
(viii) each a Contract containing covenants that restrict the is a confidentiality or non‑disclosure agreement, other than those related to business activity of any member of the Radiancy Groupdevelopment activities (“NDAs”), including, but not limited to, any exclusivity covenants, material transfer (or limit the freedom of any member of the Radiancy Group to engage in any line of business other similar research) agreement (“MTAs”) or to compete with any Personclinical trial agreement (“CTAs”);
(ix) any agreement providing for indemnification by any member a Contract relating to the testing, auditing or controlling of the Radiancy GroupTransferred Products, other than indemnification provided to customers or vendors in the Ordinary Course of Businessincluding any pharmacovigilance Contracts and quality Contracts;
(x) any employment a Contract that: (A) contains a covenant by Seller not to compete or consulting Contract with any Business Employeeotherwise limits the freedom of Seller from engaging in the research, ownership, operation, development, manufacture, distribution or any consultant or contractor commercialization of the Radiancy BusinessTransferred Products; (B) grants any rights of exclusivity to any Person; (C) grants any right of first refusal, other than at-will arrangements that do not include severance first offer, first negotiation or similar preferential right; (D) grants any “change most favored customer,” Americas 92425100 “most favored supplier” or similar rights to any Person; or (E) contains a “requirements” obligation requiring Seller to purchase a designated portion of control” provisionsany type of material; andor
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of a Contract that is otherwise material to the foregoingAcquired Assets.
(iib) Except as set forth in Section 3.15(b) Each of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Material Contracts are is in full force and effect and are constitutes a legal, valid and binding agreement of Seller, and to the knowledge of Seller, each other party thereto, enforceable in accordance with their terms except its terms, subject to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws Laws of general application affecting or relating to the enforcement of creditors’ rights generally, and (ii) is subject to general principles of equity.
. Neither Seller, nor, to the knowledge of Seller, any other party thereto is (iiiwith or without notice or lapse of time, or both) Except as set forth in Section 3.15(c) material breach or default in the performance, observance or fulfillment of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach any obligation or covenant contained in any material respect of or default under (and to PHMD’s KnowledgeMaterial Contract, no event has occurred nor does there exist any condition which with notice or upon the passage of time or both the giving of notice or both, would constitute a breach in any reasonably be expected to cause such material respect violation of or material default under or permit the termination or modification of, or acceleration of any obligation under) , any Business Contract norMaterial Contract. Seller has not given or received written or, to PHMD’s Knowledgethe knowledge of Seller, is oral notice to or from any other Party Person relating to any such Business actual or alleged, breach or default. Seller has not received any written or, to the knowledge of Seller, oral notice from a Third Party stating that such Third Party intends to terminate any Material Contract in breach in and Seller has not waived any material respect right under the Material Contracts. True and complete copies of all Material Contracts including all schedules, exhibits, appendices, amendments, modifications and waivers relating thereto have been made available to Buyer, except to the extent such Material Contracts have been redacted to (i) enable compliance with Laws relating to antitrust or default under such Business Contractthe safeguarding of data privacy; (ii) comply with confidentiality obligations owed to Third Parties; or (iii) exclude information not related to the Acquired Assets.
Appears in 1 contract
Sources: Asset Purchase Agreement (Vertex Pharmaceuticals Inc / Ma)
Contracts. (a) Except for the contracts, --------- agreements, commitments, instruments, bids and proposals to which SRS is a party listed on Schedule 3.10, SRS is not a party to or ------------- otherwise bound by any written or oral (i) Section 3.15(amortgage, indenture, note, installment obligation or other instrument relating to the borrowing of money, (ii) guarantee of the Radiancy Disclosure Schedule sets forth an accurate list any obligation (excluding endorsements of the following Contracts to which any member of the Radiancy Group engaged instruments for collection in the Radiancy Business is a Party ordinary course of business of SRS), (iii) letter of credit, bond or by which any member other indemnity, (iv) joint venture, partnership or other agreement involving the sharing of the Radiancy Group is bound that is primarily used inprofits and losses, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):
(iv) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods in an amount exceeding $1,000 or materials which would not be completed within three (3) months, (vi) agreement for the sale or lease by SRS to any member person of any material amount of its assets other than the retirement or other disposition of assets no longer useful to SRS or the sale of assets in the ordinary course of the Radiancy Group engaged operation of SRS, (vi) agreement requiring the payment by SRS of more than $1,000 in any 12-month period for the purchase or lease of any machinery, equipment or other capital assets, (viii) agreement providing for the lease or sublease by SRS (as lessor, sublessor, lessee or sublessee) of any real property, (ix) distributor, sales representative, broker or agent agreement, (x) collective bargaining agreement, employment or consulting agreement or agreement providing for severance payments or other additional rights or benefits (whether or not optional) in the Radiancy Business event of an amount or value the sale of SRS, (xi) agreement requiring the payment by SRS to any person of more than $1,000 in excess of $25,000;
(ii) each Contract (other than any 12-month period for the purchase orders for Inventory) that involves performance of services or delivery of goods or materials services, (xii) material warranties relating to products distributed or services provided by SRS, (xiii) license or sublicense agreement (whether as licensor, licensee, sublicensor or sublicensee) with respect to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect material item of Intellectual Property (other than licenses for shrinkwrap, clickwrap owned or other similar commercially available off-the-shelf software that has not been modified or customized licensed by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnershipSRS, and other Contract (however namedxiv) involving a sharing of profitsagreement imposing non-competition, losses, costs, confidentiality or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoingexclusive dealing obligations on SRS.
(iib) Except SRS has delivered or made available to Eco complete and correct copies of each written agreement listed on Schedule 3.10 each as set forth in Section 3.15(b) amended to date and a summary of the Radiancy Disclosure Scheduleterms ------------- of each oral agreement listed on Schedule 3.10. Each agreement ------------- listed on Schedule 3.10 is a valid, as binding and enforceable ------------- obligation of SRS and, to SRS' knowledge, the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except other party or parties thereto (subject to the extent that such enforceability (i) may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other and similar laws relating Laws affecting creditors' rights and remedies generally and subject as to creditors’ rights generally, and (ii) is subject enforceability to general principles of equity.
(iii, including principles of commercial reasonableness, good faith and fair dealing) and is in full force and effect. Except as set forth in Section 3.15(con Schedule 3.10
(i) of the Radiancy Disclosure Scheduleneither SRS nor, as of the date hereofto SRS' knowledge, no Radiancy Group member ------------- any other party thereto is in material breach in of any material respect term of any such agreement or default has repudiated any material term of any such agreement, (ii) no event, occurrence or condition exists (including the transactions contemplated under (and to PHMD’s Knowledgethis Agreement) which, no event has occurred which with notice or the passage lapse of time or both the giving of notice or both, would constitute become a breach in default under any such agreement by SRS or, to SRS' knowledge, any other party thereto, and (iii) SRS has not released or waived any material respect of or default under) right under any Business Contract nor, contract. SRS is not required to PHMD’s Knowledge, is give any notice to any other Party person who is a party to an agreement listed on Schedule 3.10 regarding this ------------- Agreement or the Merger.
(c) Schedule 3.10 sets forth a correct and complete ------------- list of the ten largest customers of SRS in terms of net revenues during each of the 1994 and 1995 fiscal years and the first six months of fiscal 1996, showing the approximately total net revenue received in each such period from each such customer. Except to the extent set forth on Schedule 3.10, since December 31, 1995, there has not been any adverse change in the business relationship between SRS and any customer listed on such Business Contract in breach in any material respect of or default under such Business ContractSchedule.
Appears in 1 contract
Sources: Merger Agreement (American Eco Corp)
Contracts. (ia) Section 3.15(a3.14(a) of the Radiancy Company Disclosure Schedule sets forth an accurate Letter is a complete list of the following Contracts all written contracts, agreements, commitments, leases, sales contracts and other agreements to which the Company or any member Company Subsidiary is a party as of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member date of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business this Agreement (collectively, the “Radiancy Business Material Contracts”):
(i) each Contract which provide for the receipt or expenditure by the Company or any Company Subsidiary after the date of this Agreement, of more than $1,000,000 (or its equivalent in non-cash consideration) per year (other than purchase orders contracts, agreements, commitments, leases, sales contracts and other agreements (i) providing for Inventoryacquisition or disposition of supplies or other inventory in the ordinary course of business or (ii) that involves performance may be canceled without any penalty or other liability to the Company or any Company Subsidiary upon notice of services 90 days or delivery of goods or materials by any member less (contracts described in clause (ii), regardless of the Radiancy Group engaged in the Radiancy Business amount of an amount receipts or value in excess of $25,000expenditures thereunder, “Excluded Contracts”));
(ii) each Contract which are for the acquisition or disposition of any interest in real estate (other than purchase orders for Inventory) that involves performance of services those under which neither the Company nor any Company Subsidiary has any continuing obligations or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000rights);
(iii) each Leasewhich provide for the acquisition, rental issuance or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting transfer of any securities of the ownership of, leasing of, title to, use of, Company or any leasehold or Company Subsidiary (other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000as contemplated by this Agreement);
(iv) each Contract in respect of Intellectual Property which create or represent Indebtedness or Liens (other than licenses Permitted Liens (other than clause (ii) of the definition of Permitted Liens) on assets of the Company or any Company Subsidiary as security for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy BusinessIndebtedness);
(v) each collective bargaining agreement and other Contract to under which the Company or with any labor union Company Subsidiary is currently a franchisee or other employee representative of a group of employeesfranchisor;
(vi) each which establish or govern the terms of any partnership or joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Personventure agreement;
(vii) which expressly limits the freedom of the Company or any agreement relating Company Subsidiary to indebtedness for borrowed money compete in any line of business with any Person or extensions of creditin any geographical area;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Groupwhich is a material broker, includingdistributor, but not limited todealer, any exclusivity covenantsmanufacturer’s representative, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Personagency, sales promotion, market research, marketing, consulting and advertising agreement (other than Excluded Contracts);
(ix) any agreement providing which provide for indemnification by any member the provision of the Radiancy Groupgaming, other than indemnification provided to customers gambling or vendors in the Ordinary Course of Businessarcade facilities or arcade services;
(x) any which are material agreements with a credit card or debit card company;
(xi) which are employment or consulting Contract agreements with any Business Employee, director or any consultant or contractor officer of the Radiancy Business, Company or a Company Subsidiary or with any other than at-will arrangements that do not include severance employee of the Company or “change of control” provisionsa Company Subsidiary; and
(xixii) each amendmentwhich are collective bargaining agreements, supplement, and modification (whether oral contracts or written) in respect of any of the foregoingother agreements or understandings with a labor union or labor organization.
(iib) Complete and correct copies of all Material Contracts as of the date hereof have been provided to Purchaser or its counsel. Each of the Material Contracts is a valid and binding obligation of the Company or the Company Subsidiary party thereto, and to the Company’s knowledge, the other parties thereto.
(c) Except as set forth in Section 3.15(b3.14(c) of the Radiancy Company Disclosure ScheduleLetter, as of neither the date hereofCompany nor any Company Subsidiary is, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except nor to the extent that such enforceability (i) may be limited by bankruptcyknowledge of Sellers is any other party, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles in default under any material term of equityany Material Contract.
(iiid) Except as set forth in Section 3.15(c3.14(d) of the Radiancy Company Disclosure ScheduleLetter, as all Indebtedness of the date hereof, no Radiancy Group member Company and the Company Subsidiaries is in breach in any material respect of prepayable without premium or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contractpenalty.
Appears in 1 contract
Contracts. (ia) Section 3.15(a) For purposes of the Radiancy Disclosure Schedule sets forth an accurate list this Agreement, each of the following shall be deemed to constitute a "PARENT MATERIAL CONTRACT", which Parent Material Contracts to which any member and all amendments thereto, in each case as of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member date of this Agreement are listed on Schedule 3.7 of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, Parent Disclosure Letter and copies of which have been made been made available to the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):Company:
(i) each any ▇▇▇▇ Corporation Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials is required by any member the rules and regulations of the Radiancy Group engaged in SEC to be filed as an exhibit to the Radiancy Business of an amount or value in excess of $25,000Parent SEC Documents;
(ii) each any ▇▇▇▇ Corporation Contract relating to (other than purchase orders for InventoryA) that involves performance the employment of any employee or the services of any independent contractor or delivery of goods or materials consultant and pursuant to which any member of the Radiancy Group engaged in the Radiancy Business of an amount ▇▇▇▇ Corporations is or value may become obligated to make any severance or termination payment in excess of $25,00050,000 or (B) any bonus, relocation or other payment in excess of a material amount to any current or former employee, independent contractor, consultant, officer or director (other than payments, in the case of (A) and (B) above, in respect of salary or pursuant to standard severance policies, existing bonus plans or standard relocation policies of Parent which are listed on Schedule 3.7(a) or Schedule 3.12(a) of the Parent Disclosure Letter);
(iii) each Leaseany ▇▇▇▇ Corporation Contract relating to the acquisition, rental transfer, development, sharing or occupancy agreement, license, installment and conditional license of any material Proprietary Asset (except for any ▇▇▇▇ Corporation Contract pursuant to which (A) any material Proprietary Asset is licensed to the ▇▇▇▇ Corporations under any third party software license generally available for sale agreement, and other Contract affecting to the ownership of, leasing of, title to, use ofpublic, or (B) any leasehold or other interest in, material Proprietary Asset is licensed by any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000the ▇▇▇▇ Corporations to any customer in connection with the sale of any product in the ordinary course of business consistent with prior practice);
(iv) each any ▇▇▇▇ Corporation Contract in respect with any officer, director or affiliate of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business)Parent;
(v) each collective bargaining agreement and other any ▇▇▇▇ Corporation Contract creating or relating to any partnership or with joint venture or any labor union sharing of revenues, profits, losses, costs or other employee representative of liabilities, under which a group of employees▇▇▇▇ Corporation has continuing material obligations;
(vi) each joint venture, partnership, and other any ▇▇▇▇ Corporation Contract that involves the payment or expenditure by a ▇▇▇▇ Corporation in excess of $50,000 that may not be terminated by such ▇▇▇▇ Corporation (however namedwithout penalty) involving within sixty (60) days after the delivery of a sharing of profits, losses, costs, or liabilities termination notice by any member of the Radiancy Group with any other Personapplicable ▇▇▇▇ Corporation;
(vii) any agreement relating ▇▇▇▇ Corporation Contract contemplating or involving the payment or delivery of cash or other consideration to indebtedness for borrowed money or extensions a ▇▇▇▇ Corporation in excess of credit$50,000;
(viii) each any ▇▇▇▇ Corporation Contract containing covenants that restrict imposing any restriction on the business activity right or ability of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group ▇▇▇▇ Corporation to engage in any line of business or to (A) compete with any other Person;, (B) acquire any material product or other material asset or any services from any other Person, sell any material product or other material asset to or perform any services for any other Person or transact business or deal in any other manner with any other Person, or (C) develop or distribute any material technology; and
(ix) any agreement providing for indemnification by any member other ▇▇▇▇ Corporation Contract, if a breach of such ▇▇▇▇ Corporation Contract could reasonably be expected to have a Material Adverse Effect on the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing▇▇▇▇ Corporations.
(iib) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are Each Parent Material Contract is valid and in full force and effect effect, and are is enforceable in accordance with its terms subject to (A) Legal Requirements of general application relating to bankruptcy, insolvency and the relief of debtors, and (B) rules of law governing specific performance, injunctive relief and other equitable remedies, except to the extent they have expired in accordance with their terms and except where the failure to be in full force and effect, individually or in the aggregate, would not reasonably be expected to be material to the extent that ▇▇▇▇ Corporations. Parent has delivered to or made available to the Company true and complete copies of each Parent Material Contract, except in the case of a Parent Material Contract which is derived from a standard form agreement of the ▇▇▇▇ Corporations, Parent has delivered to or made available to the Company a form or forms of such enforceability (i) may be limited by bankruptcyagreement. In each case where a Parent Material Contract is derived from a standard form agreement, insolvencyall of the terms, reorganization, moratorium or other conditions and provisions of such Parent Material Contract are substantially similar laws relating with respect to creditors’ rights generally, and (ii) is subject material terms to general principles of equitythe form agreement from which such agreement derived.
(iiic) Except as set forth in Section 3.15(c) None of the Radiancy Disclosure Schedule▇▇▇▇ Corporations has materially violated or breached, as of the date hereofor committed any material default under, any Parent Material Contract. To Parent's knowledge, no Radiancy Group member is in breach in other Person has materially violated or breached, or committed any material respect of or default under under, any Parent Material Contract.
(and to PHMD’s Knowledged) To Parent's knowledge, no event has occurred which occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) could reasonably be expected to (i) result in a material violation or breach of any provision of any Parent Material Contract by any of the passage ▇▇▇▇ Corporations; (ii) give any Person the right to declare a material default or exercise any remedy under any Parent Material Contract; (iii) give any Person the right to accelerate the maturity or performance of time any Parent Material Contract; or both would constitute a breach (iv) give any Person the right to cancel or terminate, or modify in any material respect of or default under) respect, any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Parent Material Contract.
Appears in 1 contract
Contracts. (ia) Section 3.15(a) 3.13 of the Radiancy Parent Disclosure Schedule sets forth an accurate list Letter lists all of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business Companies is a Party party or by which any member of the Radiancy Group their respective properties or assets is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):bound:
(i) each Contract all leases of real property that provides for annual payments of One Hundred Thousand and No/100 Dollars (other than purchase orders for Inventory$100,000.00) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000more;
(ii) each Contract (all Contracts that contain any noncompetition or exclusive dealing agreements or “most favored nation” provision or other than purchase orders for Inventory) agreement or obligation that involves performance of services purports to materially limit or delivery of goods or materials to restrict in any member respect the ability of the Radiancy Group engaged in Companies (or, following the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member consummation of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict Transactions, would limit the business activity of any member ability of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group Companies) to engage compete in any line of business or to compete with any PersonPerson or in any geographic area (other than as may be required by Law or any Governmental Entity) or which grants any right of first refusal, right of first offer or similar right or that limits or purports to limit the ability of the Companies (or, following consummation of the Transactions, Purchaser or any of its Affiliates) to own, operate, sell, transfer, pledge or otherwise dispose of any assets or business;
(iii) all Contracts for, with respect to, or that contemplates, a possible merger, consolidation, reorganization, recapitalization or other business combination, or asset acquisition or sale or acquisition or sale of equity securities not in the ordinary course of business consistent with past practice, and all Contracts which relate to a merger, consolidation, reorganization, recapitalization, or other business combination, or asset acquisition or sale or acquisition or sale of equity securities and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect;
(iv) all Contracts relating to the borrowing of money or the deferred purchase price of property or services by a Company, or the guarantee by a Company of any obligations of a third party, including any sale and leaseback transactions, capitalized leases, and other similar financing transactions;
(v) all Contracts that involve expenditures or receipts of a Company in excess of Fifty Thousand and No/100 Dollars ($50,000.00) per year;
(vi) all Contracts that provide for future payments or obligations of a Company in excess of Fifty Thousand and No/100 Dollars ($50,000.00) in the aggregate and which by its terms does not terminate or is not terminable without penalty or payment upon notice of one hundred eighty (180) days or less;
(vii) all employment agreements, severance agreements, retention agreements, change of control agreements, consulting agreements, or similar agreements that are with any director or executive officer;
(viii) all Contracts with agents and other independent contractors of any of the Companies that are not based on one of the Companies’ standard form agreements that were previously delivered to Purchaser, or that are based on such a form but contain a material deviation to the form terms and provisions;
(ix) all Contracts creating a joint venture, franchise, partnership, limited liability company agreement, or similar arrangement, or relating to the operation, management or control of any agreement providing for indemnification by partnership, franchise, or joint venture, in each case, with any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Businessthird parties;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor all Contracts which limits payments of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisionsdividends; and
(xi) each amendmentall license, supplementdevelopment, consent, source code escrow, or similar agreement relating to Intellectual Property, and modification all agreements for the provision of or services relating to IT Assets, in each case, that are material to the business and operations of a Company, other than non-exclusive in-licenses to commercially available software for annual fees of less than Twenty-Five Thousand and No/100 Dollars (whether oral or written$25,000.00) in respect of any per year. Each Contract of the foregoingtype described in the foregoing clauses (i) through (x) is referred to herein as a “Material Contract.”
(iib) Except as set forth in Section 3.15(bWith respect to each Material Contract:
(i) It is valid and binding on each Company to the extent that a Company is a party thereto, and to the Knowledge of the Radiancy Disclosure ScheduleParent, as of the date hereofeach other party thereto, all of the Radiancy Business Contracts are and is in full force and effect and are enforceable in accordance with their terms its terms, except to the extent that such validity and enforceability (i) may be limited by applicable bankruptcy, insolvency, moratorium, reorganization, moratorium or other similar laws relating to Laws affecting the enforcement of creditors’ rights generally, and generally or by general principles of equity or by principles of public policy.
(ii) There is subject no material default by the Companies or, to general principles the Knowledge of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure ScheduleParent, as of the date hereofany other party thereto, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event or condition has occurred which with that constitutes, or, after notice or the passage lapse of time or both both, would constitute constitute, a breach in any material respect default on the part of or default under) any Business Contract northe Companies or, to PHMD’s Knowledgethe Knowledge of Parent, is any other Party to party thereto, under any such Business Contract in breach in Material Contract, nor has any material respect Company received any written notice of any such default, event, or default under such Business condition, or of any termination or non-renewal of any Material Contract. Parent has made available to Purchaser true and complete copies of all the Material Contracts, including any amendments thereto.
Appears in 1 contract
Sources: Equity Purchase Agreement (1347 Property Insurance Holdings, Inc.)
Contracts. (ia) Section 3.15(aSchedule 4.19(a) of the Radiancy Disclosure Schedule sets forth an accurate and complete list of each Contract (except for Tenant Leases and Third-Party Leases) (including a description of any oral Contract) to the following Contracts to which extent that, such Contract binds or affects any member of the Radiancy Group engaged in the Radiancy Business Purchased Assets or any Seller or Mission Acquired Entity is a Party party to or by which any member of the Radiancy Group is bound that is primarily used in, by such Contract in connection with the Business or otherwise necessary for, the operation of the Radiancy Business Purchased Assets (collectively, the “Radiancy Business Material Contracts”):), including the following:
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value all Contracts involving aggregate consideration in excess of $25,00075,000 or requiring performance by any party more than one year from the Execution Date;
(ii) each Contract all Contracts that cannot be cancelled without penalty or without more than ninety (other than purchase orders for Inventory90) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000days’ notice;
(iii) each Leaseall Contracts that relate to the acquisition of any business, rental a material amount of stock or occupancy agreement, license, installment and conditional sale agreement, and assets of any other Contract affecting the ownership of, leasing of, title to, use of, Person or any leasehold or other interest in, any personal real property (except personal property leases and installment and conditional sales agreements having aggregate payments whether by merger, sale of less than $50,000stock, sale of assets or otherwise);
(iv) each Contract all Contracts that contain non-competition provisions restricting the conduct of the Business, or restricting the conduct of any Person potentially competing with the Business, in respect any geographic area or during any period of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business)time;
(v) each collective bargaining agreement and other Contract all Contracts granting any exclusive rights, rights of first refusal, rights of first negotiation or similar rights to or with any labor union or other employee representative of a group of employeesPerson;
(vi) each joint ventureexcept for agreements relating to trade receivables, partnership, and other Contract all Contracts relating to Indebtedness (however named) involving a sharing of profits, losses, costsincluding guarantees), or liabilities by imposing an Encumbrance (other than a Permitted Encumbrance) on any member of the Radiancy Group with any other PersonPurchased Asset;
(vii) all managed care or third-party payor Contracts to which any agreement relating to indebtedness for borrowed money of the Sellers or extensions of creditthe Mission Acquired Entities is a party;
(viii) each Contract containing covenants all Contracts with any Physician, any Practitioner or licensed health care facility;
(ix) all Contracts for medical direction, the provision of professional health care services, or medical supervision of the performance of health care services at the Facilities, not otherwise covered by subsection (viii);
(x) all Contracts between or among any of Sellers or the Mission Acquired Entities on the one hand and any Seller Affiliate, Excluded Affiliate or the Foundation on the other hand;
(xi) all collective bargaining agreements or Contracts with any labor organization, union or association;
(xii) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements), other than arrangements covered by subsections (viii) or (ix) above;
(xiii) all Contracts pursuant to which material payments are required upon a sale of substantially all the assets that restrict constitute the business activity Business;
(xiv) all Contracts that provide for severance pay or any other material post- employment payment by, or financial obligation of, any Seller or Mission Acquired Entity in excess of $50,000, not otherwise covered by subsections (viii) or (ix) above;
(xv) all joint venture, partnership or similar Contracts that provide for the sharing of profits relating to any portion of the Business with any third party;
(xvi) all Contracts for the sale of any member of the Radiancy Group, including, but not limited to, Purchased Assets or for the grant to any exclusivity covenants, or limit the freedom Person of any member option, right of first refusal or preferential or similar right to purchase any of the Radiancy Group to engage in Purchased Assets;
(xvii) all Contracts that provide for the indemnification of any line Person or the assumption of business any Tax, environmental or to compete with other Liability of any Person;
(ixxviii) any agreement providing for indemnification by any member all Intellectual Property Contracts, except that Schedule 4.19(a) does not need to disclose non-exclusive inbound licenses of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisionsStandard Software; and
(xixix) each amendment, supplement, and modification (whether oral or written) all leases with annual payments in respect excess of any of the foregoing$100,000.
(iib) Except as set forth Each Assumed Contract and Material Contract is valid and binding on the applicable Seller or Mission Acquired Entity in Section 3.15(b) accordance with its terms and is in full force and effect, except in circumstances in which the failure of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are such Assumed Contract or Material Contract to be in full force and effect or constitute a binding obligation would not be material to the Facility to which such Contract relates. Each Seller and are enforceable Mission Acquired Entity (in accordance with their terms except each case, to the extent that a party thereto) has paid all amounts to be paid by such enforceability (i) may be limited by bankruptcySeller or Mission Acquired Entity, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generallyas applicable, and (ii) is subject otherwise performed all material obligations required to general principles be performed to date by such Seller or Mission Acquired Entity under each Assumed Contract or Material Contract and no Seller or Mission Acquired Entity has received any written notice of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Scheduletermination, as of the date hereofcancellation, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledgeany Assumed Contract or Material Contract. To the Knowledge of Sellers, no event has occurred which that, with notice or the passage of time or both the giving of notice or both, would constitute result in a default, breach or event of noncompliance by any Seller or Mission Acquired Entity under any Assumed Contract or Material Contract, or result in the termination thereof, or would cause or permit the acceleration or other changes of any material respect right or obligation or the loss of or default underany benefit thereunder, except as set forth on Schedule 4.19(b) any Business Contract norand Schedule 4.22(c). To the Knowledge of Sellers, to PHMD’s Knowledge, is any no other Party party to any such Business Assumed Contract or Material Contract is in material breach in any thereof or material respect default thereunder. A true, correct and complete copy of or default under such Business Contracteach written Assumed Contract and Material Contract and an accurate written description setting forth the terms and conditions of each oral Assumed Contract and Material Contract has been delivered to Buyer.
Appears in 1 contract
Sources: Asset Purchase Agreement
Contracts. Except for such items with respect to the purchase of goods for resale in the ordinary course of business or intercompany transactions between or among the Company and/or Company Subsidiaries, SCHEDULE 4.14 is a complete list of all written contracts, agreements, commitments, leases, sales contracts and other agreements to which the Company or any of the Company Subsidiaries is a party as of the date of this Agreement (i) Section 3.15(awhich provide for the receipt or expenditure by the Company or any Company Subsidiary after the date of this Agreement, of more than $1,000,000 (or, in either case, its equivalent in non-cash consideration) of the Radiancy Disclosure Schedule sets forth an accurate list of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
per year; (ii) each Contract (which provide for the acquisition, issuance or transfer of any securities of the Company other than purchase orders for Inventory) that involves performance of services this Agreement, the Company Stock Options or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
Company Warrants, (iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting which create Liens on assets of the ownership of, leasing of, title to, use of, Company or any leasehold or other interest inof the Company Subsidiaries as security for indebtedness for borrowed money, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap with any fast-food or other similar commercially available off-the-shelf software that has not been modified motel franchisors; or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union Stockholder (or other employee representative any affiliate of a group of employees;
any Stockholder) pursuant to which the Company (vior any Company Subsidiary) each joint venturewill have any Liability or obligation following the Closing, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money all agreements with a labor union, or extensions of credit;
(viii) each Contract containing covenants any agreement that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit limits the freedom of the Company or any member of the Radiancy Group Company Subsidiary to engage compete in any line of business or to compete with any Person;
Person or in any geographic area (ixall agreements, arrangements or commitments required to be identified in SCHEDULE 4.14 being hereinafter referred to as the "MATERIAL CONTRACTS"). True and complete copies of all the Material Contracts (including all written amendments thereto) any agreement providing for indemnification by any member of identified in SCHEDULE 4.14 have been made available to Parent through the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Dataroom. Except as set forth in Section 3.15(bon SCHEDULE 4.14, (i) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Material Contracts are valid and existing, and the Company and the Company Subsidiaries, have duly performed their obligations thereunder in full force and effect and are enforceable in accordance with their terms except all material respects to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generallyobligations have accrued, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event thereunder by the Company or any Company Subsidiary has occurred and is continuing, except in each case, for those failures to be valid and existing or breaches or defaults which with notice would not, individually or in the passage of time aggregate, have, or both would constitute reasonably be expected to have, a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business ContractCompany Material Adverse Effect.
Appears in 1 contract
Contracts. (ia) Section 3.15(aSchedule 2.14(a) of the Radiancy Disclosure Schedule sets forth an accurate and complete list of all Contracts in effect as of the following Contracts date hereof to which any member of Target Entity, Harsco or any Non-Company Affiliate (but with respect to Harsco and any Non-Company Affiliate, only such Contracts primarily relating to the Radiancy Group engaged in the Radiancy Business Business), is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):
(i) each Contract party (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials standard sales orders entered into by any member of the Radiancy Group engaged Target Entity, as applicable, in the Radiancy Business ordinary course of business) which by its terms:
(i) is not terminable at will within six (6) months and requires future expenditures or other performance with respect to goods, equipment or services having an amount or annual value in excess of of, with respect to Contracts listed in Schedule 2.14(ii), $25,0002,000,000, and with respect to such other Contracts, $250,000, in each case, other than any Business Benefit Plan or related Contract;
(ii) each Contract (relates to the obligation of the Target Entities or the Asset Sellers to purchase products, materials, supplies, goods, equipment, other assets or services pursuant to which payments of $2,000,000 or more were made during the 12-month period ending on December 31, 2012, other than purchase orders for Inventory) that involves performance of services any Business Benefit Plan or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000related Contract;
(iii) each Lease, rental relates to the obligation of the Target Entities or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, Asset Sellers to sell products or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate services pursuant to which payments of less than $50,000)250,000 or more were received during the 12-month period ending on December 31, 2012;
(iv) each relates to any Indebtedness other than Intercompany Balances or Intracompany Obligations;
(v) (i) limits the ability of any Target Entity to compete in any line of business that is material to the Business or with any Person in any geographic area and that would so limit the freedom of the Target Entities or any of their Affiliates after the Closing or (ii) contains exclusivity obligations binding on any Target Entity or the Asset Sellers;
(vi) requires any capital commitment or capital expenditure (including any series of related expenditures) by the Target Entities or the Asset Sellers of greater than $250,000;
(vii) relates to the acquisition or disposition of any business, assets, properties or rights under which the Target Entities have any future liability with respect to an “earn-out,” contingent purchase price, deferred purchase price or similar contingent payment obligation;
(viii) constitutes a Contract in respect of Intellectual Property (other than licenses for shrinkwrap(x) purchase orders or standard sales orders entered into by any Asset Seller or Target Entity in the ordinary course of business, clickwrap (y) Business Benefit Plans and related contracts and agreements, or (z) intercompany notes that will be terminated pursuant to Section 4.8(a)), to which one of the counterparties is Harsco or any Non-Company Affiliate or any officer, director, stockholder or other similar Affiliate of Harsco (other than the Target Entities) or any Non-Company Affiliate (each, an “Intercompany Contract”);
(ix) constitutes an agreement that contains any indemnification obligations of any Target Entity or any Asset Seller, or credit support relating to such indemnification obligations, other than any of such indemnification obligations or credit support incurred in the ordinary course of business or that require credit support or indemnification obligations of less than $250,000 or that are Business Benefit Plans; or
(x) is an Intellectual Property Contract that is material to the Business (excluding Intellectual Property Contracts for commercially available off-the-shelf software Software that has is not been modified the subject of a negotiated agreement and for which the aggregate annual amounts paid or customized payable to or by a third Party the Target Entities related to such Contract are less than $250,000), including the Contracts with Oracle Corporation for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member benefit of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisionsTarget Entities; andor
(xi) is a Real Property Lease (the Contracts described in clauses (i) through (xi), the “Material Contracts”). Harsco has made available to CD&R Investor a true and complete copy of (x) each amendmentMaterial Contract (including all modifications and amendments thereto and written waivers thereunder) and (y) all form purchase orders or contracts of the Target Entities and the Asset Sellers that are material to the Business. Except as would not, supplementindividually or in the aggregate, and modification (whether oral reasonably be expected to have a Material Adverse Effect, each Material Contract to which Harsco or written) in respect of any of its Affiliates (including the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure ScheduleTarget Entities), as of the date hereofapplicable, all of the Radiancy Business Contracts are is a party is in full force and effect and are enforceable in accordance with their terms except its respective terms. Each Material Contract is valid, binding and enforceable against Harsco or such Affiliate, as applicable, and, to the extent that such Knowledge of Harsco, each other party thereto in accordance with its terms, except as enforceability (i) may be limited by bankruptcybankruptcy Laws, insolvency, reorganization, moratorium or other similar laws relating to Laws affecting creditors’ rights generally, and (ii) is subject to general principles of equity affecting the availability of specific performance and other equitable remedies (regardless of whether enforcement is sought in a proceeding at law or in equity.
) and except as would not reasonably be expected to have, individually or in the aggregate, a material and adverse effect on the Business or the Target Entities, taken as a whole. Neither Harsco nor any of its Affiliates (iiiincluding the other Sellers and Target Entities) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in default, violation or breach in any material respect of or default under (and or, to PHMD’s Knowledgethe Knowledge of Harsco, is alleged to be in default or breach in any material respect under) any such Material Contract to which it is a party, or has within the last 12 months provided or received notice of any intention to terminate any such Material Contract. To the Knowledge of Harsco, no event or circumstance has occurred which and is continuing that constitutes or, with notice or the passage of time or both both, would constitute constitute, a default, violation or breach in any material respect under any such Material Contract by any party thereto, or result in a termination thereof or would cause or permit the acceleration of or default underother changes of or to any right or obligation or the loss by Harsco or any of its Affiliates (including the Target Entities) of any benefit thereunder, in each case, except for such defaults, breaches, violations, terminations, accelerations or changes as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) Schedule 2.14(b) sets forth an accurate and complete list of all Shared Contracts in effect as of the date of this Agreement (excluding any Business Benefit Plan and Contracts for commercially available off-the-shelf Software that is not the subject of a negotiated agreement and for which the aggregate amounts paid or payable to or by Harsco or any of its Affiliates related to such Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contractare less than $250,000).
Appears in 1 contract
Sources: Purchase Agreement (Harsco Corp)
Contracts. (i) Section 3.15(aSchedule 3.2(y)(i) of the Radiancy Disclosure Schedule sets forth an accurate Letter contains a complete list of the following Contracts to which any member as of the Radiancy Group engaged date hereof (the Contracts described in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used inthis Section 3.2(y)(i), or otherwise necessary fortogether with all exhibits and schedules thereto being, the operation of the Radiancy Business (collectively, the “Radiancy Business "Material Contracts”"):
(iA) each Contract to which a Holding Company is a party (other than purchase orders without regard to materiality);
(B) any distribution, sales or advertising Contract for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000150,000 on an annual basis or any agency Contract;
(iiC) each any Contract with Key Customers (other than excluding purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged entered into in the Radiancy Business Ordinary Course of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(vD) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employeesIndependent Distributor Agreement;
(viE) each any Contract with Key Suppliers (excluding purchase orders entered into in the Ordinary Course of Business);
(F) any Contract in excess of $150,000 on an annual basis for the purchase of materials, supplies, equipment or services;
(G) any Contract under which any Acquired Company is obliged to make payments or expenditures (including capital expenditures) on an annual basis in excess of $150,000 in the aggregate;
(H) any partnership, joint venture, partnership, and franchise agreement or other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of similar agreement relating to the Radiancy Group with any other PersonBusiness;
(viiI) any agreement relating to indebtedness Contract (other than between and among the Acquired Companies) under which Indebtedness for borrowed money in excess of $150,000 is outstanding or extensions pursuant to which any property or asset of creditany Acquired Company is mortgaged, pledged or otherwise subject to a Lien (other than a Permitted Lien) for an amount in excess of $150,000, or any Contract restricting the incurrence of Indebtedness by any Acquired Company or the incurrence of Liens (other than Permitted Liens) on any properties or securities of wholly-owned subsidiaries or restricting the payment of dividends;
(viiiJ) each any Contract containing covenants that restrict the business activity of guarantee, support, assumption or endorsement of, or any member of the Radiancy Group, including, but not limited similar commitment with respect to, any exclusivity covenants, Indebtedness or limit the freedom other liability of any member other Person in excess of $150,000;
(K) any Contract that purports to limit in any material respect the Radiancy Group right of any Acquired Company to engage in any line of business or to compete with any Personperson or operate in any location;
(ixL) any agreement Contract providing for indemnification by the sale or acquisition of, or option to sell or acquire, any member property with a fair market value in excess of $150,000 in respect of which the applicable transaction has not been consummated, in each case other than any such Contract entered into in the Ordinary Course;
(M) any Contract in respect of the Radiancy GroupIntellectual Property owned by, licensed to or used by the Acquired Companies that is material to the Business;
(N) any Contract pursuant to which an Acquired Company is a lessor or lessee of (i) any material machinery, equipment, motor vehicles, office furniture, fixtures or (ii) other material personal property;
(O) any Contract that is material to the Business of the Acquired Companies to which an Acquired Company is a party made other than indemnification provided to customers or vendors in the Ordinary Course of Businessbusiness;
(xP) any employment or consulting Contract with any Business Employee, Person with whom an Acquired Company or any consultant or contractor a Seller does not deal at arm's length within the meaning of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.Tax Act;
(ii) Except as set forth in Section 3.15(b) True, correct and complete copies of all written Material Contracts have been made available to Purchaser prior to the date of this Agreement. Each of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Material Contracts are is in full force and effect and are is valid and binding on and enforceable against the applicable Acquired Company party thereto and, to the Sellers' knowledge, the other parties thereto, in accordance with their terms except its terms. Except as would not be material to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) Business of the Radiancy Disclosure ScheduleAcquired Companies, taken as of the date hereofa whole, no Radiancy Group member Acquired Company or, to the knowledge of Sellers, any other party thereto, is in breach in any material respect of or violation of, or default under (and to PHMD’s Knowledgein each case, no event has occurred which with or without notice or the passage lapse of time or both would constitute a breach in both) under, any material respect of or default under) any Business Contract norMaterial Contract, and, to PHMD’s Knowledgethe knowledge of Sellers, is no Acquired Company has received or given any other Party to written notice of default under any such Business Material Contract in breach in any material respect of or default under such Business Contractwhich remains uncured.
Appears in 1 contract
Contracts. (i) Section 3.15(a) of the Radiancy Disclosure Schedule sets forth an accurate list of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(iia) Except as set forth in Section 3.15(b) 4.10 of the Radiancy Company Disclosure ScheduleLetter, as of the date hereof, all neither the Company nor any Company Subsidiary is a party to or bound by any:
(i) contract that would be required to be filed by the Company as a material contract pursuant to Item 601(b)(10) of Regulation S-K;
(ii) contract containing covenants of the Radiancy Business Contracts are Company or any Company Subsidiary not to compete in any line of business, industry or geographical area or which affects the ability of an Affiliate of the Company or any Company Subsidiary from competing in any line of business, industry or geographical area;
(iii) contract which creates a partnership or joint venture or similar arrangement with respect to any material business of the Company or any Company Subsidiary;
(iv) contract that, individually or in the aggregate, would or would reasonably be expected to prevent, materially delay or materially impede the Company’s ability to consummate the transactions contemplated by this Agreement;
(v) indenture, credit agreement, loan agreement, guarantee, note or other evidence of Indebtedness or agreement providing for Indebtedness in excess of $100,000;
(vi) contract (other than this Agreement) for the acquisition or sale of assets (whether by merger, consolidation, acquisition of stock or assets or otherwise) in excess of $100,000;
(vii) collective bargaining agreement, employment agreement, offer letter, or severance or termination or transition agreement, in each case providing for annual payments of more than $100,000;
(viii) agreement (or group of related agreements) for the lease of personal property providing for annual payments of more than $100,000;
(ix) contract (other than purchase orders) for the purchase or sale of materials, supplies, goods, equipment, products, merchandise or other assets, or for the furnishing or receipt of services, with any of the top 20 vendors of the Company or the Company Subsidiaries or top 20 customers (including dealers, channel partners or other distributors) of the Company or the Company Subsidiaries based on aggregate payments made or revenues received by the Company and the Company Subsidiaries, taken as a whole, during the fiscal year ending March 26, 2005;
(x) contract that contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any Equity Interests of any Person or assets that have a fair market value or purchase price of more than $100,000;
(xi) settlement or conciliation agreement or similar agreement (except for benefit plans and individual employee agreements) or order or consent of a Governmental Authority to which the Company or any of the Company Subsidiaries is a party involving future performance by the Company or any Company Subsidiary which is material to the Company;
(xii) other contract (other than this Agreement or purchase orders) pursuant to which the Company or any Company Subsidiary has incurred a Liability in excess of $100,000 or providing for payments from the Company or any Company Subsidiary in excess of $100,000;
(xiii) contract by which the Company or any Company Subsidiary licenses to or from any Person any material Intellectual Property or that otherwise concerns material Intellectual Property or that otherwise concerns material Intellectual Property;
(xiv) agreement with any shareholder, former shareholder, affiliate, director, officer or relative of any of the foregoing; and
(xv) Real Property Leases or other agreement relating to the Leased Real Property.
(b) Each such contract described in Section 4.10(a) is referred to herein as a “Material Contract.” With respect to each such Material Contract, (i) neither the Company nor any Company Subsidiary is (and, to the knowledge of the Company, no other party is) in or is alleged to be in breach of or default under such Material Contract, (ii) neither the Company nor any Company Subsidiary has given or received any written notice or claim of default under such Material Contract, (iii) no event has occurred that, with or without notice or lapse of time or both, would result in a breach or a default under such Material Contract, (iv) such Material Contract is in full force and effect, and is the valid, binding and enforceable obligation of the Company and the Company Subsidiaries, and to the knowledge of the Company, of the other parties thereto, (v) the consummation of the transactions contemplated by this Agreement will not result in such Material Contract failing to continue in full force and effect and are enforceable in accordance with their terms except to after the extent that consummation of such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium transactions without penalty or other similar laws relating to creditors’ rights generallyadverse consequence, (vi) no party has repudiated any provision of such Material Contract and (iivii) is subject to general principles of equity.
(iii) Except except as set forth in on Section 3.15(c4.10(b) to the Company Disclosure Letter, such Material Contract does not contain any change or control or similar provision that would be triggered by, or contain an assignment or similar provision that would prohibit, the transactions contemplated by this Agreement. The Company has made available to Parent true and complete copies of the Radiancy Disclosure Scheduleeach Material Contract, as of the date hereof, no Radiancy Group member is in breach in any including all material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contractamendments thereto.
Appears in 1 contract
Contracts. (ia) Section 3.15(a) 4.14 of the Radiancy OCBB Disclosure Schedule sets forth an accurate list Letter lists each of the following types of Contracts (current copies of which have been provided to HomeStreet) to which OCBB or any member of the Radiancy Group engaged in the Radiancy Business its Subsidiaries is a Party party or by which any member of the Radiancy Group their respective properties or assets is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):bound:
(i) each any Contract (other than purchase orders for Inventory) that involves performance limits the ability of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, OCBB or any leasehold or other interest in, of its Subsidiaries to compete in any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments line of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to business or with any labor union Person or other employee representative of a group of employees;
(vi) each joint venturein any geographic area or, partnershipto OCBB’s Knowledge, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member upon consummation of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that Merger will materially restrict the business activity ability of HomeStreet or any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, its Subsidiaries or limit the freedom of any member of the Radiancy Group Affiliates to engage in any line of business in which a OCBB’s bank holding company may lawfully engage;
(ii) any Contract to which any Affiliate, officer, director, employee or consultant of OCBB or any of its Subsidiaries is a party or beneficiary (except with respect to compete loans to directors, officers and employees entered into in the ordinary course of business and in accordance with all applicable regulatory requirements with respect to such loans);
(iii) any Contract that obligates OCBB or any of its Subsidiaries (or, following the consummation of the Transactions, would obligate HomeStreet or its Subsidiaries) to conduct business with any Personthird party on an exclusive or preferential basis;
(iv) any Contract that limits the payment of dividends by OCBB or any of its Subsidiaries;
(v) any Contract with respect to the formation, creation, operation, management or control of a joint venture, partnership, limited liability or other similar agreement or arrangement;
(vi) any Contract relating to indebtedness of OCBB or any of its Subsidiaries;
(vii) any Contract that by its terms calls for aggregate payment or receipt by OCBB or any of its Subsidiaries of more than $100,000 over the remaining term of such Contract;
(viii) any Contract that provides for potential indemnification payments by OCBB or any of its Subsidiaries or the potential obligation of OCBB or any of its Subsidiaries to repurchase loans or leases;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors Contract not entered into in the Ordinary Course ordinary course of Businessbusiness between OCBB or any of its Subsidiaries and any Affiliate thereof on the other;
(x) any employment Contract that is material to OCBB’s balance sheet or consulting its financial conditions or results of operations;
(xi) any Contract with that provides any Business Employee, rights to investors in OCBB or any consultant of its Subsidiaries, including registration, preemptive or contractor anti-dilution rights or rights to designate members of or observers to the Radiancy BusinessOCBB Board;
(xii) any Contract that is a consulting agreement or data processing, software programming or licensing Contract involving the payment of more than $10,000 per annum (other than at-will arrangements any such Contracts which are terminable by OCBB or any of its Subsidiary on 60 days or less notice without any required payment or other conditions (other than the condition of notice));
(xiii) any Contract that do not include severance requires a consent to or otherwise contains a provision relating to a “change of control,” provisionsor that would or would reasonably be expected to prevent, materially delay or impair the consummation of the Transactions; andor
(xixiv) any Contract not of the type described in clauses (i) through (xiii) above and which involved the payments by, or to, OCBB or one of more of its Subsidiaries in the fiscal year ended December 31, 2014, or which could reasonably be expected to involve such payments during the fiscal year ending December 31, 2015, of more than $50,000 (other than pursuant to Loans originated or purchased by OCBB or a Subsidiary of OCBB in the ordinary course of business consistent with past practice). Each Contract of the type described in clauses (i) through (xiv) is referred to herein as a “OCBB Material Contract.”
(i) Each OCBB Material Contract is valid and binding on OCBB or its relevant Subsidiary and on each amendment, supplementother party thereto, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are is in full force and effect and are enforceable in accordance with their terms its terms, except where the failure to be valid, binding, enforceable and in full force and effect, individually or in the extent that such enforceability (i) may aggregate, has not had and would not reasonably be limited by bankruptcyexpected to have a Material Adverse Effect on OCBB and its Subsidiaries, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and taken as a whole; (ii) is subject OCBB or its relevant Subsidiary, and, to general principles the Knowledge of equity.
OCBB, each other party thereto, has performed all obligations required to be performed by it under each OCBB Material Contract, except where any noncompliance, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on OCBB and its Subsidiaries, taken as a whole; and (iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, there is no Radiancy Group member is in breach in any material respect of or default under (any OCBB Material Contract by OCBB and its relevant Subsidiary, or, to PHMD’s Knowledgethe Knowledge of OCBB, any other party thereto, and no event or condition has occurred which with that constitutes, or, after notice or the passage lapse of time or both both, would constitute constitute, a breach in any material respect default on the part of OCBB or default under) any Business Contract norits relevant Subsidiary or, to PHMD’s Knowledgethe Knowledge of OCBB, is any other Party to party thereto under any such Business Contract OCBB Material Contract, except where any such default, event or condition, individually or in breach in any material respect of or default under such Business Contractthe aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on OCBB and its Subsidiaries, taken as a whole.
Appears in 1 contract
Sources: Merger Agreement (HomeStreet, Inc.)
Contracts. (ia) Section 3.15(a2.07(a) of the Radiancy Seller Disclosure Schedule sets forth an accurate Letter contains a list of each Contract that is in effect as of the date of this Agreement and that falls in one or more of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business categories (collectively, whether or not scheduled, the “Radiancy Business Foxtail Material Contracts”):
(i) each a Contract (other than purchase orders for Inventory) containing covenants binding upon Seller or its Subsidiaries that involves performance restrict during any period of services time the ability of Seller or delivery any of goods its Subsidiaries to compete or materials by engage in any member of business or geographic area and that relates to the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000Foxtail Business;
(ii) each a Contract (containing any “most favored nations,” exclusivity or similar right or undertaking in favor of any party other than purchase orders for Inventory) that involves performance of services or delivery of Seller and its Subsidiaries with respect to any material goods or materials services purchased or sold by Seller or its Subsidiaries and that relates to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000Foxtail Business;
(iii) each Leasea lease, rental sublease or occupancy agreement, license, installment and conditional sale agreement, and other similar Contract affecting the ownership of, leasing of, title to, use with any Person under which Seller or any of its Subsidiaries is a lessor or sublessor of, or makes available for use to any leasehold or other interest inPerson, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)Foxtail Facilities;
(iv) each a lease, sublease or similar Contract in respect with any Person under which Seller or any of Intellectual Property (other than licenses for shrinkwrap, clickwrap its Subsidiaries is a lessee or other similar commercially available off-the-shelf software that has not been modified sublessee or customized by a third Party uses any real property for the Radiancy operation of the Foxtail Business);
(v) each collective bargaining agreement and other a license or sublicense Contract to under which Seller or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by its Subsidiaries grants any member rights under any of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness Foxtail IP Assets, except for borrowed money or extensions of credit;
(viii) each Contract containing covenants customer contracts that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors grant non-exclusive use licenses in the Ordinary Course of Business;
(xvi) any employment a license or consulting sublicense Contract with any Business Employee, under which Seller or any consultant of its Subsidiaries is granted any rights under any Intellectual Property used in the Foxtail Business, except for non-exclusive licenses to software that is generally commercially available;
(vii) a Contract for the sale of any material Acquired Asset or contractor collection of Acquired Assets that are material to the Radiancy BusinessFoxtail Business in the aggregate, other than atContracts entered into in the Ordinary Course of Business;
(viii) (A) a Contract relating to the Foxtail Business involving the payment of more than $150,000 in the fiscal year ended December 31, 2015, or that would reasonably be expected to provide for the payment of more than $150,000 in any future 12-month period ended December 31, with respect to goods and services relating to the Foxtail Business and that is not terminable at will arrangements by Seller or any of its Subsidiaries (or Acquiror following the Closing) on less than 30 days’ notice without penalty, or (B) a Contract relating to the Foxtail Business involving the receipt of more than $150,000 in the fiscal year ended December 31, 2015, or that do would reasonably be expected to provide for the receipt of more than $150,000 in any future 12-month period ended December 31, with respect to goods and services relating to the Foxtail Business and that is not include severance terminable at will by Seller or “change any of control” provisionsits Subsidiaries (or Acquiror following the Closing) on less than 30 days’ notice without penalty;
(ix) a Contract relating to any Indebtedness to a third party that would bind Acquiror or any of its Affiliates after the Closing;
(x) a Contract under which (A) any Person has directly or indirectly guaranteed or assumed Indebtedness, Liabilities or obligations of the Foxtail Business or (B) the Foxtail Business has directly or indirectly guaranteed or assumed Indebtedness, Liabilities or obligations of another Person, in each case in excess of $150,000 individually or $300,000 in the aggregate;
(xi) a material settlement or compromise of any suit, claim, proceeding or dispute relating to the Foxtail Business;
(xii) any sales agency, sales representation, consultant or distributorship Contract relating to the Foxtail Business; and
(xixiii) each amendment, supplement, and modification (whether oral a Contract establishing or written) in respect of providing for any of material partnership or joint venture relating to the foregoingFoxtail Business.
(iib) Except Seller has made available to Acquiror a true and correct copy of each Foxtail Material Contract as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, effect as of the date hereofof this Agreement.
(c) Each Foxtail Material Contract is valid, all of the Radiancy Business Contracts are binding and in full force and effect and are is enforceable by and against Seller or one of its Subsidiaries in accordance with their terms its terms, except as has not been and would not reasonably be expected to be material to the extent that such enforceability (i) may Foxtail Business. Each of Seller and its Subsidiaries has performed all obligations required to be limited performed by bankruptcyit to date under the Foxtail Material Contracts to which it is a party and is not in breach of or default thereunder and, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles the Knowledge of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereofSeller, no Radiancy Group member other party to any Foxtail Material Contract is in breach in any material respect of or default under (and to PHMD’s Knowledgethereunder, no event has occurred which with notice or the passage of time or both would constitute a breach in any respect that would reasonably be expected to be, individually or in the aggregate, material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contractthe Foxtail Business.
Appears in 1 contract
Contracts. (i) Section 3.15(a) of Other than to the Radiancy extent such Contracts relate to the Excluded Assets, TDS Disclosure Letter Schedule 6.7 sets forth an a complete and accurate list of all Contracts of API and its Subsidiaries of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):categories:
(i) each Contract Reseller Contracts (provided, that, with respect to reseller agreements with customers only reseller agreements with customers for at least 2,000 or more pagers and with respect to reseller agreements with third party vendors only material national reseller agreements along with totals by region of reseller agreements with third party vendors), distribution, franchise, lease and license (other than purchase orders for Inventorywith respect to software that is available in consumer retail stores and subject to "shrink wrap" license agreements) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000Contracts;
(ii) each Contract Sales, commission, consulting, agency or advertising Contracts which are not cancelable on thirty (other than purchase orders for Inventory30) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000calendar days notice;
(iii) each LeaseOptions to buy any property, rental real or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use ofpersonal, or options to sell or sublet any leasehold API Leased Real Property or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)included in the API Assets;
(iv) each Contracts involving expenditures or Liabilities in excess of $250,000 over the life of the Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business)otherwise material to API and its Subsidiaries;
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract Contracts containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit limiting the freedom of any member of the Radiancy Group API or its Subsidiaries to engage in any line of business or to compete with any Person;
(ixvi) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of BusinessIntentionally omitted;
(xvii) All Contracts with LECs for provision of Interconnection to API ("API INTERCONNECTION CONTRACTS"), including: (a) all such API Interconnection Contracts regardless of whether such agreements have yet been submitted to or approved by the relevant PUCs; (b) a listing of any requests for interconnection filed by API with PUC(s) pursuant to Section 252(a) of the Communications Act and a brief description of the status of the PUC proceeding with respect to each such request; (c) a brief description of outstanding negotiations between API and LECs regarding provision of Interconnection by LECs regardless of whether such negotiations are pursuant to a request for interconnection submitted by API pursuant to Section 252(a) of the Communications Act; and (d) any employment or consulting Contract related agreements between API and LECs regarding Interconnection.
(viii) All Personal Property Leases of API and its Subsidiaries ("API PERSONAL PROPERTY LEASES") excluding Contracts with any Business Employee, or any consultant or contractor customers for lease of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisionspagers; and
(xiix) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business All Contracts are in full force and effect and are enforceable in accordance with their terms except not listed pursuant to the extent that such enforceability Sections 6.7.1 (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contract.through 6.7.1
Appears in 1 contract
Sources: Asset Contribution Agreement (Telephone & Data Systems Inc)
Contracts. (ia) Section 3.15(a3.11(a) of the Radiancy Company Disclosure Schedule sets forth an a complete and accurate list of the following Contracts all contracts and agreements to which the Company or any member of its Subsidiaries is a party as of the Radiancy Group engaged in date of this Agreement that are material to the Radiancy Business is a Party business, financial condition or by which any member results of operations of the Radiancy Group is bound that is primarily used inCompany and its Subsidiaries, or otherwise necessary fortaken as a whole, the operation of the Radiancy Business including without limitation (collectively, the “Radiancy Business Company Material Contracts”):
(i) each Contract any agreement, contract or commitment in connection with which or pursuant to which the Company and its Subsidiaries will spend or receive (other than purchase orders for Inventory) that involves performance of services or delivery of goods are expected to spend or materials by any member of the Radiancy Group engaged receive), in the Radiancy Business of an amount aggregate, more than $100,000 during the current fiscal year or value in excess of $25,000during the next fiscal year;
(ii) each Contract any non-competition or other agreement that prohibits or otherwise restricts in any material respect, the Company or any of its Subsidiaries or Affiliates from freely engaging in business anywhere in the world (other than purchase orders for Inventory) including any agreement restricting the Company or any of its Subsidiaries or Affiliates from competing in any line of business or in any geographic area or that involves performance of services or delivery of goods or materials grants to any member of the Radiancy Group engaged in the Radiancy Business of an amount party most-favored-nation or value in excess of $25,000similar rights);
(iii) each Lease, rental or occupancy agreement, license, installment any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)its Subsidiaries;
(iv) each Contract in respect of any agreement relating to Intellectual Property that is material to the business of the Company and its Subsidiaries, taken as a whole, (other than licenses for shrinkwrapexcluding generally commercially available, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Businesslicenses with less than $100,000 in annual license fees);
(v) each collective bargaining agreement and any contract (A) relating to the disposition or acquisition by the Company or any of its Subsidiaries after the date of this Agreement of a material amount of assets other Contract than in the Ordinary Course of Business, or (B) pursuant to which the Company or with any labor union of its Subsidiaries will acquire after the date of this Agreement any material ownership interest in any other Person or other employee representative of a group of employeesbusiness enterprise other than the Company’s Subsidiaries;
(vi) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts relating to the borrowing of money, extension of credit, surety bonds or guarantees of indebtedness in each joint venture, partnershipcase in excess of $100,000 other than (A) accounts receivables and payables, and other Contract (however namedB) involving a sharing of profitsloans to direct or indirect wholly-owned Subsidiaries, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) in each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors case in the Ordinary Course of Business;
(xvii) any employment contract that involves any material joint venture, partnership or consulting Contract with similar arrangement;
(viii) any Business Employee, contract or agreement that would obligate the Company or any consultant or contractor of its Subsidiaries to file a registration statement under the Radiancy BusinessSecurities Act, which filing has not yet been made;
(ix) any agreement that involves, other than at-will arrangements sales or repurchases of inventory in the Ordinary Course of Business, acquisitions or dispositions, directly or indirectly (by merger or otherwise), of assets or capital stock or other voting securities or equity interests of another person or the Company or any of its Subsidiaries (A) for aggregate consideration in excess of $200,000 or (B) that do involves continuing or contingent obligations of the Company or any of its Subsidiaries that are material to the Company and its Subsidiaries taken as a whole or is not include severance or “change of control” provisionsyet consummated; and
(xix) each amendmentany agreement that relates to any material settlement, supplementother than (A) releases immaterial in nature or amount entered into with former employees or independent contractors of the Company in the Ordinary Course of Business in connection with the routine cessation of such employee’s or independent contractor’s employment with the Company, (B) settlement agreements for cash only (which has been paid) and modification does not exceed $200,000 as to such settlement or (whether oral or writtenC) in respect settlement agreements entered into more than one year prior to the date of this Agreement under which neither the Company nor any of the foregoingits Subsidiaries has any continuing material obligations, liabilities or rights (excluding releases).
(iib) Except as set forth except to the extent it has previously expired in Section 3.15(b) of accordance with its terms or where the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are failure to be in full force and effect and are enforceable effect, individually or in accordance with their terms except the aggregate, is not reasonably likely to have a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries nor, to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMDCompany’s Knowledge, no event has occurred which with notice any other party to any Company Material Contract is or is alleged in writing to be in violation or breach of or in default under any Company Material Contract (nor does there exist any condition which, upon the passage of time or both the giving of notice or both, would constitute cause such a violation or breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business any Company Material Contract), except for violations, breaches or defaults that, individually or in the aggregate, are not reasonably likely to have a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries has received notice in writing that any party which is currently doing business with the Company or any of its Subsidiaries intends to terminate, limit or restrict its relationship with the Company or any of its Subsidiaries. The Company has made available to the Buyer a complete and accurate copy of each Company Material Contract.
(c) Neither the Company nor any of its Subsidiaries has entered into any transaction, agreement, arrangement or understanding with any Affiliate (including any director or officer) of the Company or any of its Subsidiaries or any transaction that would be subject to disclosure pursuant to Item 404 of Regulation S-K.
Appears in 1 contract
Sources: Merger Agreement (Airvana Inc)
Contracts. (a) Except for this Agreement and as disclosed on ▇▇▇▇▇▇ Disclosure Schedule 2.08, neither ▇▇▇▇▇▇ nor any ▇▇▇▇▇▇ Subsidiary is a party to or subject to: (i) Section 3.15(aany agreement, contract, arrangement, commitment or understanding (whether written or oral) that is a “material contract” within the meaning of Item 601(b)(10) of the Radiancy Disclosure Schedule sets forth an accurate list of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
SEC’s Regulation S-K; (ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
real estate lease; (iii) each Leaseany employment, rental consulting or occupancy agreementseverance contract or arrangement with any past or present officer, licensedirector or employee, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
for oral “at will” arrangements; (iv) each Contract in respect any plan, arrangement or contract providing for bonuses, pensions, options, restricted stock, deferred compensation, retirement payments, profit sharing or similar arrangements for or with any past or present officers, directors or employees of Intellectual Property (other than licenses for shrinkwrap, clickwrap ▇▇▇▇▇▇ or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
any ▇▇▇▇▇▇ Subsidiary; (v) each any collective bargaining agreement and other Contract to or with any labor union relating to employees of ▇▇▇▇▇▇ or other employee representative of a group of employees;
any ▇▇▇▇▇▇ Subsidiary; (vi) each joint venture, partnership, and other Contract (however named) involving a sharing any agreement which by its terms limits the payment of profits, losses, costs, dividends by ▇▇▇▇▇▇ or liabilities by any member of the Radiancy Group with any other Person;
▇▇▇▇▇▇ Subsidiary; (vii) any agreement relating instrument evidencing or related to indebtedness for borrowed money whether directly or extensions indirectly, by way of credit;
purchase money obligation, conditional sale, lease purchase, guaranty or otherwise, in respect of which ▇▇▇▇▇▇ or any ▇▇▇▇▇▇ Subsidiary is an obligor to any person, which instrument evidences or relates to indebtedness other than deposits, repurchase agreements, bankers acceptances and “treasury tax and loan” accounts established in the ordinary course of business and transactions in “federal funds,” or which contains financial covenants or other restrictions (other than those relating to the payment of principal and interest when due) which would become applicable on or after the Closing Date to Franklin or any Franklin Subsidiary; (viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit contract limiting the freedom of ▇▇▇▇▇▇ or any member of the Radiancy Group ▇▇▇▇▇▇ Subsidiary to engage in any line type of banking or bank-related or other business or to compete with any Person;
permissible under law; (ix) any agreement providing for indemnification by contract relating to the acquisition of any member of the Radiancy Groupbusiness that has not been fully performed, other than indemnification provided including where contingent compensation remains to customers or vendors in the Ordinary Course of Business;
be paid; (x) any employment contract or consulting Contract with any Business Employee, agreement pursuant to which ▇▇▇▇▇▇ or any consultant ▇▇▇▇▇▇ Subsidiary is obligated to make payments in excess of $25,000 on an annual basis that cannot be terminated by ▇▇▇▇▇▇ or contractor of the Radiancy Business, other than at-will arrangements that do not include severance a ▇▇▇▇▇▇ Subsidiary without penalty upon 90 days or “change of control” provisionsless notice; and
or (xi) any contractual or other agreements which give any director, officer or employee of ▇▇▇▇▇▇ or any ▇▇▇▇▇▇ Subsidiary the right to terminate such agreement in connection with the Merger.
(b) Except as disclosed in ▇▇▇▇▇▇ Disclosure Schedule 2.08, neither ▇▇▇▇▇▇ nor any ▇▇▇▇▇▇ Subsidiary leases any real property. The ▇▇▇▇▇▇ Disclosure Schedule describes in reasonable detail each amendmentsuch lease, supplementincluding the term and rent due thereunder and ▇▇▇▇▇▇ has delivered to Franklin true, correct and modification (whether oral complete copies of all such leases. None of such leases are currently in default and ▇▇▇▇▇▇ has not received notice of, or written) in respect has knowledge of, a proposed non-renewal of any of said leases. Each real estate lease that may require the foregoingconsent of the lessor or its agent to the Merger by reason of a prohibition or restriction relating to assignment, by operation of law or otherwise, or change in control, is listed in the ▇▇▇▇▇▇ Disclosure Schedule identifying the section of the lease that contains such prohibition or restriction.
(iic) Except as set forth Neither ▇▇▇▇▇▇ nor any ▇▇▇▇▇▇ Subsidiary is in default in any material respect under any material contract, agreement, commitment, arrangement, lease, insurance policy or other instrument to which it is a party, by which its assets, business or operations may be bound or affected, or under which it or its assets, business or operations receive benefits, and there has not occurred any event that, with the lapse of time or the giving of notice or both, would constitute such a default.
(d) True and correct copies of “material contracts,” leases, agreements, plans, arrangements and instruments referred to in Section 3.15(b2.08(a), 2.08(b) of the Radiancy Disclosure Schedule, as of or 2.08(c) have been provided to Franklin on or before the date hereof, all of are listed on the Radiancy Business Contracts ▇▇▇▇▇▇ Disclosure Schedule and are in full force and effect on the date hereof and are enforceable in accordance with their terms except neither ▇▇▇▇▇▇ nor, to the extent that knowledge of ▇▇▇▇▇▇, any other party to any such enforceability contract, plan, arrangement or instrument, has breached any provision of, or is in default in any respect under any term of, any such contract, lease, plan, arrangement or instrument, (i) may be limited by bankruptcyno party to any “material contract,” lease, insolvencyplan, reorganization, moratorium arrangement or other similar laws relating instrument will have the right to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) terminate any or all of the Radiancy Disclosure Scheduleprovisions of any such contract, plan, arrangement or instrument as a result of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contract.transactions contemplated by this Agreement,
Appears in 1 contract
Contracts. (a) Except for the contracts, --------- agreements, commitments, instruments, bids and proposals to which ESI is a party listed on Schedule 3.10, ESI is not a party to or ------------- otherwise bound by any written or oral (i) Section 3.15(amortgage, indenture, note, installment obligation or other instrument relating to the borrowing of money, (ii) guarantee of the Radiancy Disclosure Schedule sets forth an accurate list any obligation (excluding endorsements of the following Contracts to which any member of the Radiancy Group engaged instruments for collection in the Radiancy Business is a Party ordinary course of business of ESI), (iii) letter of credit, bond or by which any member other indemnity, (iv) joint venture, partnership or other agreement involving the sharing of the Radiancy Group is bound that is primarily used inprofits and losses, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):
(iv) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods in an amount exceeding $5,000 or materials which would not be completed within three (3) months, (vi) agreement for the sale or lease by ESI to any member person of any material amount of its assets other than the retirement or other disposition of assets no longer useful to ESI or the sale of assets in the ordinary course of the Radiancy Group engaged operation of ESI, (vi) agreement requiring the payment by ESI of more than $5,000 in any 12-month period for the purchase or lease of any machinery, equipment or other capital assets, (viii) agreement providing for the lease or sublease by ESI (as lessor, sublessor, lessee or sublessee) of any real property, (ix) distributor, sales representative, broker or agent agreement, (x) collective bargaining agreement, employment or consulting agreement or agreement providing for severance payments or other additional rights or benefits (whether or not optional) in the Radiancy Business event of an amount or value the sale of ESI, (xi) agreement requiring the payment by ESI to any person of more than $5,000 in excess of $25,000;
(ii) each Contract (other than any 12-month period for the purchase orders for Inventory) that involves performance of services or delivery of goods or materials services, (xii) material warranties relating to products distributed or services provided by ESI, (xiii) license or sublicense agreement (whether as licensor, licensee, sublicensor or sublicensee) with respect to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect material item of Intellectual Property (other than licenses for shrinkwrap, clickwrap owned or other similar commercially available off-the-shelf software that has not been modified or customized licensed by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnershipESI, and other Contract (however namedxiv) involving a sharing of profitsagreement imposing non-competition, losses, costs, confidentiality or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoingexclusive dealing obligations on ESI.
(iib) Except ESI has delivered or made available to AEC complete and correct copies of each written agreement listed on Schedule 3.10 each as set forth in Section 3.15(b) amended to date and a summary of the Radiancy Disclosure Scheduleterms ------------- of each oral agreement listed on Schedule 3.10. Each agreement ------------- listed on Schedule 3.10 is a valid, as binding and enforceable ------------- obligation of ESI and, to ESI's knowledge, the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except other party or parties thereto (subject to the extent that such enforceability (i) may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other and similar laws relating Laws affecting creditors' rights and remedies generally and subject as to creditors’ rights generally, and (ii) is subject enforceability to general principles of equity.
(iii, including principles of commercial reasonableness, good faith and fair dealing) and is in full force and effect. Except as set forth in Section 3.15(con Schedule 3.10
(i) of the Radiancy Disclosure Scheduleneither ESI nor, as of the date hereofto ESI's knowledge, no Radiancy Group member ------------- any other party thereto is in material breach in of any material respect term of any such agreement or default has repudiated any material term of any such agreement, (ii) no event, occurrence or condition exists (including the transactions contemplated under (and to PHMD’s Knowledgethis Agreement) which, no event has occurred which with notice or the passage lapse of time or both the giving of notice or both, would constitute become a breach in default under any such agreement by ESI or, to ESI's knowledge, any other party thereto, and (iii) ESI has not released or waived any material respect of or default under) right under any Business Contract nor, contract. ESI is not required to PHMD’s Knowledge, is give any notice to any other Party person who is a party to an agreement listed on Schedule 3.10 regarding this ------------- Agreement or the Merger.
(c) Schedule 3.10 sets forth a correct and complete ------------- list of the ten largest customers of ESI in terms of net revenues during each of the 1997 and 1996 fiscal years and the first two months of fiscal 1998, showing the approximately total net revenue received in each such period from each such customer. Except to the extent set forth on Schedule 3.10, since December ------------- 31, 1997, there has not been any adverse change in the business relationship between ESI and any customer listed on such Business Contract in breach in any material respect of or default under such Business ContractSchedule.
Appears in 1 contract
Contracts. (ia) Section 3.15(aSchedule 3.10(a) of the Radiancy Disclosure Schedule sets forth an contains a complete and accurate list of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedulelist, as of the date hereof, all of the Radiancy Business Transferred Contracts are (other than purchase orders, pricing acknowledgements, confirmations and similar documents) (collectively, the “Material Contracts”). Schedule 3.10(a) identifies any Material Contracts that fall under any of the following categories of Contracts that, in full force and effect and are enforceable in accordance with their terms except each case, relate to the extent that such enforceability Target Business: (i) may that involve or could reasonably be limited expected to involve payments by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and Seller or a Subsidiary of either more than $250,000 per year or more than $500,000 in the aggregate over the full term thereof; (ii) is subject to general principles with any one of equity.
the Top Customers; (iii) Except with any one of the Top Suppliers; (iv) that contain any provision or covenant prohibiting or limiting the ability of Seller or a Subsidiary to (A) engage in any activity (including geographical restrictions), (B) to compete in any line of business, directly or indirectly, with any Person; -37- (v) pursuant to which Seller or any of its Subsidiaries is bound to, or has committed to provide or license any Business Product, or Purchased Asset to any Third Party including any reseller or distributor of products (including the Top Distributors) other than Contracts for sales of Business Products in the ordinary course of business pursuant to Seller’s standard terms and conditions that have been provided to Buyer or to acquire or license any product, Intellectual Property or service from a Third Party; (vi) that provide for “most favored nation” terms, including such terms for pricing; (vii) that create or obligate Seller or a Subsidiary to participate in any joint venture or similar arrangement; (viii) that contain maintenance, warranty, support or similar obligations, other than as set forth on the standard terms and conditions of sale included in Section 3.15(cSchedule 3.15(a); (ix) for any distributor, original equipment manufacturer, reseller, value added reseller, sales, agency or manufacturer’s representative relationships that is material to the Target Business or the Purchased Assets, including any with respect to the Business Products; (x) that provide for Intellectual Property that is exclusively related to or exclusively used in the operation or conduct of the Radiancy Disclosure Schedule, as Target Business and is licensed from a Third Party to Seller or any of its Subsidiaries; (xi) providing for the date hereof, no Radiancy Group member is in breach in any material respect development of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Intellectual Property, independently or jointly, by or for Seller or any of its Affiliates; (xii) under which any Business Intellectual Property is licensed, assigned, or transferred by Seller or any of its Affiliates to a Third Party; (xiii) that is with any Governmental Body, university, or research organization; (xiv) that is a Contract norobligating Seller or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party; (xv) that involve, include or otherwise require Seller or any of its Subsidiaries to PHMD’s Knowledgeshare profits or pay milestones, is royalties or any other Party contingent payments with or to one or more other Persons; and (xvi) that constitute any such Business Contract other agreement, commitment, arrangement, or plan not made in breach in any the ordinary course of business that is otherwise material respect of or default under such Business Contractto the Target Business.
Appears in 1 contract
Sources: Asset Purchase Agreement (Merit Medical Systems Inc)
Contracts. (ia) Section 3.15(a5.15(a) of the Radiancy Disclosure Schedule sets forth an accurate list of lists the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Material Contracts”):
(i) each Contract all Contracts to which any Acquired Company is a party (other than excluding purchase orders that have been performed in all respects and for Inventorywhich there are no further liabilities or obligations outstanding) that involves performance of services are with customers, suppliers, or delivery of goods vendors providing for aggregate or materials annual expenditures or receipts or payments by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess such Acquired Company of $25,000100,000 or more, except any Contracts with customers that have been performed in all respects and for which there are only warranty obligations outstanding;
(ii) each Contract (other than purchase orders for Inventory) that involves performance all Contracts to which an Acquired Company is a party relating to Indebtedness of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000such Acquired Company;
(iii) each Lease, rental all Contracts to which an Acquired Company is a party relating to employment or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, compensation of any salaried (rather than hourly-based) Employee or containing any leasehold change-in-control or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)severance payment obligations;
(iv) each Contract all Contracts to which an Acquired Company is a party that are with independent contractors or consultants providing for annualized remuneration in respect excess of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business)is reasonably expected to be in excess of) $100,000;
(v) each collective bargaining agreement all agency, marketing, and other Contract advertising Contracts to or with any labor union or other employee representative of which an Acquired Company is a group of employeesparty;
(vi) each joint venture, partnership, and other Contract (however named) involving all Contracts to which an Acquired Company is a sharing of profits, losses, costsparty relating to equity grants, or liabilities by any member of the Radiancy Group with any other Personequity options;
(vii) any agreement relating all lease agreements (whether of real or personal property) to indebtedness which an Acquired Company is a party providing for borrowed money or extensions annual rentals in excess of credit$100,000;
(viii) each Contract containing covenants all Contracts to which an Acquired Company is a party that restrict is with any Affiliate of such Acquired Company;
(ix) all Contracts to which an Acquired Company is a party restricting the business activity ability of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group such Acquired Company to engage in any line of business or to compete with any Person;
(ixx) any agreement providing all Contracts to which an Acquired Company is a party that provide for the indemnification by such Acquired Company of any member current or former director or officer of such Acquired Company;
(xi) all Contracts to which an Acquired Company is a party that relate to the Radiancy Groupacquisition or disposition of any business, a material amount of stock or assets (in the case of assets, other than indemnification provided to customers the acquisition or vendors disposition of inventory in the Ordinary Course of Business) of any other Person, or any real property (whether by merger, sale of stock, sale of assets, or otherwise);
(xxii) any employment or consulting Contract all Contracts to which an Acquired Company is a party that are with any Business EmployeeGovernmental Authority;
(xiii) all Contracts to which an Acquired Company is a party that provide for any joint venture, partnership, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisionssimilar arrangement; and
(xixiv) each amendment, supplement, and modification (whether oral all other Contracts to which an Acquired Company is a party that are not made in the Ordinary Course of Business or written) in respect of any of that are material to the foregoingAcquired Companies taken as a whole.
(iib) Except as set forth in Section 3.15(b5.15(b) of the Radiancy Disclosure Schedule, as each of the date hereof, all of the Radiancy Business Material Contracts are is in full force and effect effect, is a valid and are binding obligation of the applicable Acquired Company, and is enforceable in accordance with their its terms (except to the extent that such enforceability (i) as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or moratorium, and other similar laws relating to Laws affecting creditors’ rights generally, generally and (ii) is subject to general principles of equity.
(iii) ). Except as set forth in Section 3.15(c5.15(b) of the Radiancy Disclosure Schedule, no Acquired Company, nor, to the Knowledge of Sellers, any other party thereto, is in material breach of, or material default under, or has provided or received any written notice of any intention to terminate, any Material Contract. Except as set forth in Section 5.15(b) of the date hereofDisclosure Schedule, no Radiancy Group member is in breach in any material respect to the Knowledge of or default under (and to PHMD’s KnowledgeSellers, no event or circumstance has occurred which that, with notice or the passage lapse of time or both both, would (i) constitute a breach an event of default under any Material Contract or (ii) cause or permit the acceleration of any material obligation, or the loss of any material benefit, of the Acquired Company thereunder, or result in any Acquired Company becoming liable for any liquidated or other damages. Complete and correct copies of each Material Contract (including all material respect of or default undermodifications, amendments, and supplements thereto and waivers thereunder) any Business Contract nor, have been made available to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business ContractBuyers.
Appears in 1 contract
Sources: Securities Purchase Agreement (Global Power Equipment Group Inc.)
Contracts. (ia) Section 3.15(a2.18(a) of the Radiancy Disclosure Schedule sets (with paragraph ------------------------------------------ references corresponding to those set forth an accurate below) contains a true and complete list of each of the following Contracts or other arrangements (true and complete copies or, if none, reasonably complete and accurate written descriptions of which, together with all amendments and supplements thereto and all waivers of any terms thereof, have been delivered to Purchaser prior to the execution of this Agreement) to which any member of the Radiancy Group engaged in the Radiancy Business Seller is a Party party or by which any member of the Radiancy Group Assets is bound that is primarily used inbound:
(A) all Contracts (excluding Benefit Plans) providing for a commitment of employment or consultation services for a specified or unspecified term to, or otherwise necessary forrelating to employment or the termination of employment of, any Employee, the operation name, position and rate of compensation of each Employee party to such a Contract and the Radiancy Business expiration date of each such Contract; and (collectivelyB) any written or unwritten representations, the “Radiancy Business Contracts”):
commitments, promises, communications or courses of conduct (iexcluding Benefit Plans and any such Contracts referred to in clause (A)) each Contract (involving an obligation of Seller to make payments in any year, other than purchase orders for Inventory) that involves performance of services with respect to salary or delivery of goods or materials by any member of the Radiancy Group engaged incentive compensation payments in the Radiancy Business ordinary course of an amount or value in excess of $25,000business, to any Employee;
(ii) each Contract (other than purchase orders for Inventory) that involves performance all Contracts with any Person containing any provision or covenant prohibiting or limiting the ability of services Seller to engage in any business activity or delivery compete with any Person in connection with the Business or prohibiting or limiting the ability of goods or materials any Person to any member of compete with Seller in connection with the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000Business;
(iii) each Leaseall partnership, rental or occupancy agreementjoint venture, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold shareholders' or other interest in, similar Contracts with any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)Person in connection with the Business;
(iv) each Contract all Contracts with licensors, licensees, distributors, dealers, manufacturer's representatives, sales agencies or franchises with whom Seller deals in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for connection with the Radiancy Business);
(v) each collective bargaining agreement and other Contract all Contracts to which Seller is a party, or with any labor union or other employee representative of a group of employeesby which Seller is bound, that relate to Intellectual Property Assets;
(vi) each joint ventureto the extent relevant to the Business, partnershipthe Assets or the Acquisition, all Contracts between or among Seller, on the one hand, and any officer, director, Affiliate of Associate of Seller or any Associate of any such officer, director or Affiliate, on the other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Personhand;
(vii) any agreement relating to indebtedness for borrowed money the extent relevant to the Business, the Assets or extensions of creditthe Acquisition, all collective bargaining or similar labor Contracts;
(viii) each Contract containing covenants that restrict to the business activity extent relevant to the Business, the Assets or the Acquisition, all Contracts relating to Indebtedness of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any PersonSeller;
(ix) all Contracts relating to (A) the future disposition or acquisition of any agreement providing for indemnification by any member of the Radiancy GroupAssets, other than indemnification provided to customers dispositions or vendors acquisitions of Inventory in the Ordinary Course ordinary course of business consistent with past practice, and (B) to the extent relevant to the Business, the Assets or the Acquisition, any merger or other business combination;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor all Contracts containing development obligations of the Radiancy Business, other than at-will arrangements Seller that do have not include severance or “change of control” provisionsbeen completed; and
(xi) each amendmentall other Contracts with respect to the Business that (A) involve the payment or potential payment, supplement, and modification (whether oral or written) in respect pursuant to the terms of any such Contract, by or to Seller of the foregoingmore than $5,000 annually and (B) cannot be terminated within thirty (30) days after giving notice of termination without resulting in any material cost or penalty to Seller.
(iib) Except as set forth Each Contract required to be disclosed in Section 3.15(b2.18(a) of the Radiancy ---------------------- Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are Schedule is in full force and effect and are constitutes a legal, valid ------------------- and binding agreement, enforceable in accordance with their terms its terms, of each party thereto; and except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth disclosed in Section 3.15(c2.18(b) of the Radiancy Disclosure Schedule, as ------------------------------------------ neither Seller nor, to the Knowledge of the date hereofSeller, no Radiancy Group member is any other party to such Contract is, or has received notice that it is, in violation or breach in any material respect of or default under any such Contract (and to PHMD’s Knowledge, no event has occurred which or with notice or the passage lapse of time or both both, would constitute a be in violation or breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under any such Business Contract) in any respect.
Appears in 1 contract
Contracts. (ia) Subject to the limitations set forth in this Section 3.15(a3.12, Schedule 3.12(a) of the Radiancy Disclosure Schedule sets forth an accurate a true, complete and correct list of the following types of Contracts to which any member of the Radiancy Group engaged in the Radiancy Business Companies is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):party:
(i) each Contract (other than purchase orders for Inventory) that involves performance Contracts relating to employment, or including non-competition, non-solicitation, or assignment of services or delivery of goods or materials by inventions provisions with respect to any member employee of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000Companies;
(ii) each Contract (Contracts providing for severance, retention, change in control or other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000similar payments;
(iii) each Leaseany management services, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold consulting or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)services Contracts;
(iv) each Contract Contracts providing for payments by or to the Companies in respect excess of Intellectual Property Fifteen Thousand Dollars (other than licenses $15,000) during any twelve-month period, except for shrinkwrap, clickwrap such Contracts as are cancelable without penalty on notice of thirty (30) days or other similar commercially available off-the-shelf software that has not been modified fewer or customized by a third Party for the Radiancy Business)in connection with any Acquired Structured Settlements;
(v) each collective bargaining agreement and agreements or other Contract to or Contracts with any labor organization, union or other employee representative of a group of employeesassociation;
(vi) each joint venture, partnership, and other Contract (however named) involving Contracts containing a sharing of profits, losses, costs, or liabilities by any member covenant of the Radiancy Group Companies not to compete in any line of business or with any other Person in any geographical area or, not to solicit or hire any Person;
(vii) Contracts with the Sellers or any agreement relating to indebtedness for borrowed money current or extensions former officer, manager or Affiliate of creditthe Companies or with any “associate” or any member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the Securities Exchange Act of 1934, as amended) of any such officer or manager (“Related Persons”);
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any PersonLeases;
(ix) any agreement Contracts providing for indemnification a lease, sublease or similar Contract with any Person under which (A) the Companies are lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any member Person or (B) the Companies are lessor or sublessor of, or makes available for use by any Person, any tangible personal property owned or leased by the Companies;
(x) Contracts relating to the incurrence, assumption or guarantee of any Indebtedness or imposing a Lien on any of the Radiancy Groupassets of the Companies;
(xi) any agreements under which the Companies have created, incurred, assumed, guaranteed or secured Indebtedness of another Person (other than a Subsidiary);
(xii) any agreements relating to outstanding letters of credit or performance bonds or creating any Liability as guarantor, surety, co-signer, endorser, or co-maker, in each case in respect of the obligation of any Person to make payments or perform services where either of the Companies is a party;
(xiii) Contracts for the acquisition or disposition (whether by merger, sale of stock, sale of assets or otherwise) of substantially all of the assets of the Companies or the grant of any preferential rights to purchase such assets or requiring the consent of any party to the transfer thereof;
(xiv) Contracts with any Governmental Entity;
(xv) any agreements imposing material indemnification provided to customers or vendors obligations not in the Ordinary Course of BusinessBusiness and not specified in any other clause of this subsection;
(xxvi) any employment agency, dealer, sales representative, marketing or consulting Contract other similar Contracts;
(xvii) Contracts for any joint venture, partnership or other similar arrangement;
(xviii) powers of attorney;
(xix) licenses, sublicenses or options with respect to any Business EmployeeIntellectual Property Rights (including any such license under which the Companies are licensee or licensor of any such Intellectual Property Rights) except for in-bound licenses of generally available commercial software on standard terms and requiring the payment of fees (including any license, maintenance and support fees) of Fifteen Thousand Dollars ($15,000) or any consultant less during the period running from January 1 to December 31, 2013;
(xx) non-disclosure or contractor of standstill Contracts;
(xxi) the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisionsAcquired Structured Settlement Contracts required to be disclosed under Section 3.26 hereof; and
(xixxii) each amendment, supplement, and modification (whether oral Contracts obligating the Companies to provide or written) in respect obtain products or services for a period of any one month or more or requiring the Companies to purchase or sell a stated portion of the foregoingits requirements or outputs.
(iib) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereofon Schedule 3.12(b), all of Contracts set forth in Schedule 3.12(a) (the Radiancy Business Contracts “CBC Contracts”) were entered into on arms’ length terms and are valid, binding and in full force and effect and, assuming due authorization execution and delivery by the other parties thereto, are enforceable by the Companies in accordance with their terms except as limited by the Bankruptcy and Equity Exception. True, complete and correct copies of all written CBC Contracts have previously been made available to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Purchaser. Except as set forth in Section 3.15(cand summarized on Schedule 3.12(b), there are no unwritten CBC Contracts.
(c) Neither the Companies nor, to the Knowledge of the Radiancy Disclosure ScheduleSellers, as of the date hereof, no Radiancy Group member any other party thereto is in breach in any material respect of or in default under (under, and to PHMD’s Knowledge, no event has occurred which with notice or the passage lapse of time or both would constitute become a breach in any material respect of or default under) , any Business Contract norCBC Contract, to PHMD’s Knowledge, is any other Party and no party to any CBC Contract has given the Companies any written notice of any claim of any such Business Contract in breach in any material respect of breach, default or default under such Business Contractevent.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Asta Funding Inc)
Contracts. (ia) Section 3.15(aSchedule 4.15(a) of the Radiancy Disclosure Schedule sets forth an accurate a true, correct and complete list of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business a Target Company is a Party party or by which any member of the Radiancy Group a Target Company is bound that or to which any property or asset of a Target Company is primarily used in, subject or otherwise necessary for, under which a Target Company has any rights or the operation performance of the Radiancy Business which is guaranteed by a Target Company (collectively, the “Radiancy Business Material Contracts”):
): (i) each Contract Contracts (other than any purchase orders order that specifies price, quantity or delivery terms but does not otherwise vary the terms of any other Contract pursuant to which such purchase order was made in any material respect) for Inventorythe purchase of products or for the receipt of services from the top fifteen (15) suppliers (the “Material Suppliers”) of the Business during each of the calendar years ended December 31, 2018 and December 31, 2019, determined on a consolidated basis based on the amount of gross purchases made by the Target Companies (or their predecessors-in-interest with respect to the Business) therefrom; (ii) Contracts (other than any purchase order that specifies price, quantity or delivery terms but does not otherwise vary the terms of any other Contract pursuant to which such purchase order was made in any material respect) for the furnishing of products or services by the Target Company to the top fifteen (15) customers (the “Material Customers”) of the Business during each of the calendar years ended December 31, 2018 and December 31, 2019, determined on a consolidated basis based on the amount of net merchandise sales (gross merchandise sales less merchandise credit memos and merchandise discounts and rebates) made by the Target Companies (or their predecessors-in-interest with respect to the Business) thereto; (iii) Contracts concerning the establishment or operation of a partnership, joint venture or limited liability company or the ownership of any Investment in any Person (other than any such Contract between the Target Companies); (iv) Contracts relating to the acquisition or disposition of any of the Target Company Interests, business or product line of any Person (whether by merger, sale of stock, sale of assets or otherwise) (A) with material obligations (other than in respect of fraud) extending beyond the date hereof or (B) that involves performance of services or delivery of goods or materials by was consummated at any member of time since during the Radiancy Group engaged in the Radiancy Business of past three years involving an amount or aggregate transaction value in excess of $25,000;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
1,000,000; (v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of Contracts containing (A) a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member covenant restricting the ability of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group Target Companies to engage in any line of business in any geographic area or to compete with any Person;
, to market any product or service or to solicit or hire any Person, (ixB) any agreement providing for indemnification by any member a provision granting the other party exclusivity or similar rights or (C) 24 LEGAL02/39540989v11 a provision that requires the purchase of the Radiancy Group, other than indemnification provided to customers all or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect a material portion of any of the foregoing.
Target Companies’ requirements for a given product or service from a given third party and which Contract is not terminable by a Target Company within thirty (ii30) Except as set forth days without any required payment or other conditions (other than the condition of notice); (vi) Government Contracts; (vii) Contracts with respect to (A) the licensing of Intellectual Property by or to the Target Companies, or (B) the ownership, acquisition, enforcement, development or use of any Intellectual Property owned or used by the Target Companies, in Section 3.15(beach case, other than (1) commercially available, off the shelf Software licensed on a standard form for the internal use of the Radiancy Disclosure Schedule, as Target Companies for an aggregate purchase price of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generallyless than $100,000, and (ii2) is subject invention assignment agreements with employees and independent contractors entered into on standard forms of agreement; (viii) each indenture, credit agreement, loan agreement and similar instrument pursuant to general principles which either Target Company has or will incur or assume any indebtedness for borrowed money or has or will guarantee or otherwise become liable for any indebtedness of equity.
(iii) Except as set forth in Section 3.15(c) any other Person for borrowed money, other than any indentures, credit agreements, loan agreements or similar instruments solely between or among the Target Companies or otherwise relating to the placing of any Lien on any asset or property of the Radiancy Disclosure ScheduleTarget Companies; (ix) the Leases; (x) Contracts relating to the transfer, as voting, registration, issuance, sale, repurchase or redemption of any of the Target Company Interests; (xi) leases of personal property under which either Target Company is the lessee and is obligated to make payments in excess of $100,000 per annum; (xii) leases of personal property under which either Target Company is the lessor and is entitled to receive payments in excess of $100,000 per annum; (xiii) Contracts with any sales agency which involves consideration in excess of $500,000 per year; (xiv) Contracts under which either Target Company has advanced or loaned to any other Person any amount; (xv) Contracts that are a settlement, conciliation or similar agreement pursuant to which, on or after the date hereofof execution of this Agreement, no Radiancy Group member the Target Companies is required to pay consideration in breach in excess of $150,000 or will have any material respect of or default under outstanding Liability; (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default underxvi) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contract.CBAs; 25 LEGAL02/39540989v11
Appears in 1 contract
Sources: Equity Purchase Agreement (Schweitzer Mauduit International Inc)
Contracts. (ia) Except for Contracts filed as exhibits to the Filed Company SEC Documents, Section 3.15(a3.11(a) of the Radiancy Company Disclosure Schedule Letter sets forth an accurate list a correct and complete list, and the Company has made available to Parent correct and complete copies, of all Contracts (including all material amendments, modifications, extensions or renewals with respect thereto, but excluding all names, terms and conditions that have been redacted in compliance with the terms of each such Contract or with applicable Legal Requirements governing the sharing of information) to which the Company or any Company Subsidiary is a party as of the following Contracts to which any member date of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business this Agreement (collectively, the “Radiancy Business Company Contracts”):
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by required to be filed as an exhibit to any member report of the Radiancy Group engaged Company filed pursuant to the Exchange Act of the type described in Item 601(b) of Regulation S-K promulgated by the Radiancy Business of an amount or value in excess of $25,000SEC;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member contain a covenant restricting the ability of the Radiancy Group engaged Company or any Company Subsidiary to compete in the Radiancy Business of an amount any business or value with any Person or in excess of $25,000any geographic area;
(iii) each Leasewith any Affiliate of the Company, rental or occupancy agreement, license, installment other than those to which the only parties are the Company and conditional sale agreement, and other Contract affecting any of the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)wholly-owned Company Subsidiaries;
(iv) each Contract which primarily relates to (A) the granting to the Company or any Company Subsidiary of any IP License in respect of or to any Company Intellectual Property owned by a third party, with annual license fees of more than $25,000, or (other B) the granting by the Company or any Company Subsidiary to a third party of any IP License in or to any Company Intellectual Property, with annual license fees of more than licenses for shrinkwrap$25,000, clickwrap excluding “click-wrap” or other similar commercially available “shrink-wrap” agreements, agreements contained in or pertaining to “off-the-shelf software that has not been modified shelf” Software, or customized by a third Party the terms of use or service for the Radiancy Business)any web site;
(v) each collective bargaining agreement and other Contract relating to or with any labor union material joint venture, partnership or other employee representative of similar arrangement involving co-investment, collaboration or partnering with a group of employeesthird party;
(vi) each joint venture, partnership, and with a Governmental Entity (other Contract (however named) involving than ordinary course Contracts with Governmental Entities as a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Personcustomer);
(vii) pursuant to which any agreement relating Indebtedness of the Company or any Company Subsidiary is outstanding or may be incurred or pursuant to indebtedness for borrowed money which the Company or extensions any Company Subsidiary has guaranteed any Indebtedness of creditany other Person (other than the Company or any Company Subsidiary and excluding Company trade payables arising in the ordinary course of business);
(viii) each Contract containing covenants that restrict pursuant to which the business activity of Company, any member of Company Subsidiary or any other party thereto has continuing obligations, rights or interests relating to the Radiancy Groupresearch, includingdevelopment, but not limited clinical trial, distribution, supply, manufacture, marketing or co-promotion of, or collaboration with respect to, any exclusivity covenantsproduct or product candidate for which the Company or any Company Subsidiary is currently engaged in research or development, including manufacture or limit the freedom of any member of the Radiancy Group to engage in any line of business supply services or to compete Contracts with any Person;contract research organizations for clinical trials-related services; and
(ix) which are to any agreement providing for indemnification by extent executory and relate to (A) the disposition or acquisition of any member of the Radiancy Groupmaterial assets or properties, other than indemnification provided to customers dispositions or vendors acquisitions in the Ordinary Course ordinary course of Business;
business, or (xB) any employment merger or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoingbusiness combination transaction.
(iib) Except as set forth in Section 3.15(b) Each Company Contract is valid and binding on the Company and each Company Subsidiary which is party thereto and, to the Knowledge of the Radiancy Disclosure ScheduleCompany, as of each other party thereto, subject to the date hereofBankruptcy and Equity Exception, all of the Radiancy Business Contracts are and is in full force and effect effect, and are enforceable in accordance with their terms except the Company and each Company Subsidiary has performed all obligations required to be performed by it before the date hereof under each Company Contract and, to the extent that Knowledge of the Company, each other party to each Company Contract has performed all obligations required to be performed by it before the date hereof under such enforceability (i) may Company Contract, except for such failures to be limited by bankruptcyin compliance as would not, insolvencyindividually or in the aggregate, reorganization, moratorium or other similar laws relating reasonably be expected to creditors’ rights generally, and (ii) is subject to general principles result in an allegation of equitymaterial breach thereof.
(iiic) Except The Company has not received or enjoyed any benefit, inducement or incentive from any Governmental Entity which will, as set forth in Section 3.15(c) a result of this Agreement or the Transactions or the cessation of the Radiancy Disclosure ScheduleCompany’s business operations in the geographic area where they are currently conducted or the termination of all or substantially all Company employees, as of the date hereof, no Radiancy Group member is in breach result in any material respect of clawback, recapture, recoupment, repayment obligation, penalty, Tax or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contractliability.
Appears in 1 contract
Contracts. (ia) Section 3.15(a) Disclosure. Schedule 3.11 sets forth a complete and accurate ---------- ------------- list of all of the Radiancy Disclosure Schedule sets forth an accurate list Contracts of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):categories:
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged Contracts not made in the Radiancy Business ordinary course of an amount or value in excess of $25,000business;
(ii) each Contract License agreements, collaboration agreements, research agreements, development agreements or royalty agreements (other than purchase orders for Inventory) excluding licenses that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000are commonly available on standard commercial terms, such as software "shrink-wrap" licenses);
(iii) each Lease, rental Confidentiality and non-disclosure agreements (whether the Company is the beneficiary or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000obligated party thereunder);
(iv) each Contract Contracts or commitments involving future expenditures or Liabilities, actual or potential, in respect excess of Intellectual Property (other than licenses for shrinkwrap, clickwrap $25,000 after the date hereof or other similar commercially available off-the-shelf software that has not been modified otherwise material to the Business or customized by a third Party for the Radiancy Business)Assets;
(v) each collective bargaining agreement and other Contract Contracts or commitments relating to or commission arrangements with any labor union or other employee representative of a group of employeesothers that are material to the Business;
(vi) each joint ventureEmployment contracts, partnershipconsulting contracts, severance agreements, "stay-bonus" agreements and similar arrangements, including Contracts (A) to employ or terminate executive officers or other personnel and other Contract contracts with present or former officers or directors of the Company or (however namedB) involving a sharing of profits, losses, coststhat will result in the payment by, or liabilities by the creation of any member Liability of the Radiancy Group with Company, the stockholders of the Company or Parent to pay any severance, termination, "golden parachute," or other Personsimilar payments to any present or former personnel following termination of employment or otherwise as a result of the consummation of the transactions contemplated by this Agreement;
(vii) any agreement relating to indebtedness for borrowed money or extensions of creditIndemnification agreements;
(viii) each Contract Promissory notes, loans, agreements, indentures, evidences of indebtedness, letters of credit, guarantees, or other instruments relating to an obligation to pay money, whether the Company shall be the borrower, lender or guarantor thereunder (excluding credit provided by the Company in the ordinary course of business to purchasers of its products and obligations to pay vendors in the ordinary course of business and consistent with past practice); (ix) Contracts containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit limiting the freedom of the Company, or any member officer, director, Employee or Affiliate of the Radiancy Group Company, to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of Person that relates directly or indirectly to the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Any Contract with any Business Employeethe federal, state or local government or any consultant agency or contractor department thereof;
(xi) Any Contract or other arrangement with a Related Party;
(xii) Leases of the Radiancy Business, other real or personal property involving annual payments of more than at-will arrangements that do not include severance or “change of control” provisions$25,000; and
(xixiii) each amendmentAny other Contract under which the consequences of a default or termination would reasonably be expected to have, supplementindividually or in the aggregate, a Company Material Adverse Effect. Complete and modification (whether oral or written) in respect accurate copies of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are in full force listed on Schedule -------- 3.11, including all amendments and effect and are enforceable in accordance with their supplements thereto, have been made available ---- to Parent. The Company has included as part of Schedule 3.11 a brief summary of ------------- the material terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business each oral Contract.
Appears in 1 contract
Contracts. (ia) Section 3.15(a) 3.14 of the Radiancy Seller Disclosure Schedule sets Letter (with paragraph references corresponding to those set forth an accurate below) contains a true and complete list of the following all Contracts material to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Sellers' Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to the following Contracts (true and complete copies or, if none, reasonably complete and accurate written descriptions of which, together with all amendments and supplements thereto, have been delivered to Purchaser or made available for inspection by Purchaser prior to the execution of this Agreement) in connection with the Business to which any Seller is a party or by which any of the Assets is bound:
(i) all Contracts (excluding Employee Benefit Plans) providing for a commitment of employment or consultation services for a specified or unspecified term to, or otherwise relating to employment or the termination of employment of, any exclusivity covenantsEmployee, or limit the freedom name, position and rate of any member compensation of each Employee party to such a Contract and the Radiancy Group to engage in any line expiration date of business or to compete with any Personeach such Contract;
(ixii) all material partnership, joint venture, shareholders' or other similar Contracts with any agreement providing for indemnification by any member of Person in connection with the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(xiii) all Contracts with distributors, dealers, manufacturer's representatives, sales agencies or franchises with whom any employment Seller deals in connection with the Business which in any case involve the payment or consulting Contract with potential payment, pursuant to the terms of any Business such Contract, by or to the Sellers of more than $25,000 annually;
(iv) all Contracts relating to the future disposition or acquisition of any Assets individually or in the aggregate material to the Condition of the Business;
(v) all collective bargaining or similar labor Contracts covering any Employee, or any consultant or contractor if any;
(vi) all Time Sales Agreements which are not made in the ordinary course of business;
(vii) a complete and accurate list of all Trade Agreements which are outstanding as of the Radiancy Business, date hereof setting forth Barter Payable and Barter Receivable;
(viii) all other Contracts (other than at-will arrangements Employee Benefit Plans, the Real Property Leases and insurance policies with respect to the Business) that do not include severance (A) involve the payment or “change of control” provisions; and
(xi) each amendmentpotential payment, supplement, and modification (whether oral or written) in respect pursuant to the terms of any such Contract, by or to the Sellers of the foregoingmore than $25,000 annually and (B) cannot be terminated within ninety (90) days after giving notice of termination without resulting in any material cost or penalty to Sellers.
(iib) Except No Seller has received written notice, nor do the Sellers or the Bankruptcy Administrative Officer otherwise have knowledge, that any party to the Contracts required to be disclosed in Section 3.14 of the Seller Disclosure Letter intends to cancel, terminate, or refuse to renew such Contract or to exercise or decline to exercise any option or right thereunder. Each such Contract is valid and binding upon all parties thereto in accordance with its terms and, except as set forth in Section 3.15(b) 3.14 of the Radiancy Seller Disclosure ScheduleLetter, there is no default (or any condition or event which, after notice or lapse of time or both, would constitute a default) thereunder; except
(i) to the extent excused by or unenforceable as a result of the date hereof, all commencement or pendency of the Radiancy Business Contracts are in full force Chapter 11 Case or the application of any provision of the Bankruptcy Code and effect and are enforceable in accordance with their terms except (ii) to the extent that the failure of such enforceability (i) may Contracts to be limited by bankruptcyvalid and binding would not individually or in the aggregate, insolvency, reorganization, moratorium or other similar laws relating reasonably be expected to creditors’ rights generally, and (ii) is subject to general principles of equityhave a Seller Material Adverse Effect.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contract.
Appears in 1 contract
Sources: Asset Purchase Agreement (Regent Communications Inc)
Contracts. (ia) Section 3.15(aSchedule 4.12(a) of the Radiancy Parent Disclosure Schedule sets forth an accurate a true and complete list of all of the following Contracts to which (i) any member of the Radiancy Group engaged in the Radiancy Business Acquired Company is a Party party or by which any member of Acquired Company or its properties or other assets are otherwise bound and (ii) the Radiancy Group Project Development Company is a party with respect to the Acquired Assets or by which any Acquired Asset is otherwise bound that is primarily used in(each, or otherwise necessary for, the operation of the Radiancy Business (collectively, the a “Radiancy Business ContractsMaterial Contract”):
(i) each Contract loan agreements, credit agreements, sale-leaseback agreements, security agreements, indentures and other Contracts that provide for (A) the borrowing of moneys by or extensions of credit to any Acquired Company or to the Project Development Company with respect to the Acquired Assets by any other Person, (B) the guaranty by any Acquired Company of obligations in respect of the borrowings of money by or extensions of credit to any other Person, (C) the guaranty by Parent or any of its Affiliates (other than purchase orders for Inventoryany Acquired Company) that involves performance of services obligations of any Acquired Company or delivery of goods with respect to the Acquired Assets or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000(D) reimbursement agreements relating to guarantees;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services commodity, currency or delivery of goods interest rate hedge, exchange or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000similar agreements;
(iii) each Leasepartnership, rental shareholder, joint venture, joint development or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold limited liability company agreements or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)setting forth arrangements between the members or partners thereto;
(iv) each Contract in respect power purchase, sale or exchange agreements (including sales of Intellectual Property (other than licenses for shrinkwrapcapacity, clickwrap energy, ancillary services or other similar commercially available off-the-shelf software that has not been modified related attributes or customized by a third Party for the Radiancy Businessrenewable energy credits or renewable attributes);
(vA) each collective bargaining agreement electricity interconnection agreements and other Contract to or with any labor union or other employee representative of a group of employees(B) transmission agreements;
(vi) each joint venture(A) engineering, partnershipprocurement and construction agreements, (B) equipment supply agreements, (C) warranty agreements and other Contract performance guarantee agreements and (however namedD) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Personoperation and maintenance agreements;
(vii) labor agreements, collective bargaining agreements or similar agreements with any agreement relating to indebtedness for borrowed money union, works council or extensions of creditsimilar body;
(viii) each Contract containing covenants that non-competition, non-interference, non-solicitation, exclusivity or similar agreements which restrict the business activity ability of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group Acquired Company to engage in any line of business business, acquire any property, develop or distribute any product, provide any service (including geographic restrictions) or to compete with any Person, in any market, field or territory;
(ix) agreements (other than any agreement providing for indemnification by Transaction Document) between (I) Parent or any member of its Affiliates (excluding the Acquired Companies), on the one hand, and (II) any of the Radiancy GroupAcquired Companies, on the other than indemnification provided to customers or vendors in the Ordinary Course of Businesshand;
(x) agreements (other than any employment Transaction Document) between (I) Parent or consulting Contract with any Business Employeeof its Affiliates (excluding the Project Development Company), on the one hand, and (II) the Project Development Company, on the other hand, which relate to the Acquired Assets;
(xi) leases, subleases and any other material agreements affecting, benefiting, or burdening all or any consultant or contractor part of the Radiancy BusinessReal Property Interests;
(xii) agreements subjecting any Acquired Company to any obligation or requirement to provide for or to make any investment in, other than at-will arrangements that do not include severance or “change of control” provisionsany Person; and
(xixiii) each amendmentany agreement, supplementother than those set forth in the foregoing clauses (i) through (xii), and modification which expressly provides for future payment (whether oral A) to or writtenfrom, or Liabilities of, any Acquired Company or (B) in with respect to any Acquired Asset, of any at least $350,000 over the term of the foregoingsuch Contract.
(iib) Except as set forth in Section 3.15(bon Schedule 4.12(b) of the Radiancy Parent Disclosure Schedule, as there is no material default (i) on the part of the date hereofAcquired Companies or the Project Development Company, as applicable, or (ii) to Parent’s Knowledge, on the part of any other Person, in each case, under any Material Contract. The Project Development Company and each Acquired Company and, to Parent’s Knowledge, each other Person, in each case, has complied in all material respects with, and is in compliance in all material respects with, the provisions of each Material Contract to which it is a party.
(c) Each Material Contract constitutes a legal, valid and binding obligation of the Radiancy Business Contracts are Project Development Company and each Acquired Company party thereto (and, to Parent’s Knowledge, each other Person party thereto), and is in full force and effect and are enforceable against the Project Development Company or the Acquired Company party thereto (and, to Parent’s Knowledge, each other Person party thereto) in accordance with their its terms (except to the extent that as such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws Laws relating to or affecting the enforcement of creditors’ rights generally, in general and (ii) is subject to by general principles of equity).
(iiid) Except as set forth in Section 3.15(con Schedule 4.12(a) of the Radiancy Parent Disclosure Schedule, as Parent has made available to Purchaser true, complete and correct copies of the date hereofall Material Contracts (including all written amendments, no Radiancy Group member is in breach in any material respect of or default under (modifications, extensions and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contractrenewals thereof and related notices and agreements thereto).
Appears in 1 contract
Sources: Purchase, Sale and Contribution Agreement (8point3 Energy Partners LP)
Contracts. (ia) Section 3.15(aPART 3.13(a) OF THE DISCLOSURE LETTER contains a complete and accurate list as of the Radiancy Disclosure Schedule sets forth an accurate list of date hereof, and Sellers have made available to Buyer true copies (to the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):extent written) of:
(i) each Material Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by pursuant to which any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000Acquired Companies is a party;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Leaselease, rental or occupancy agreement, license, installment and or conditional sale agreement, and or other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except for real property and personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $50,00025,000 per year);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(viii) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(viiv) each joint venture, partnership, partnership and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group Acquired Company with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viiiv) each Contract containing covenants that restrict the business activity of any member of the Radiancy Groupwritten warranty, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group guaranty and/or other similar undertaking with respect to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification contractual performance extended by any member of the Radiancy Group, Acquired Company other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(xvi) any employment or consulting Contract that limits the ability of any Acquired Company to compete in any line of business with any Business Employee, Person or in any geographic area or that limits hiring;
(vii) any intercompany agreements or arrangements for the provision of services or products between an Acquired Company and either Seller or any consultant affiliate thereof other than an Acquired Company that will continue in effect beyond the Closing, whether or contractor not in the Ordinary Course of Business;
(viii) any Contract relating to indebtedness for borrowed money of any Acquired Company involving payment of amounts in excess of $25,000, in any year, including loan agreements, notes, letters of credit, mortgages, security agreements, pledge agreements, deeds of trust, guarantees and any other instruments or documents granting an Encumbrance that will continue in effect beyond the Closing;
(ix) any other agreement on which the business of the Radiancy BusinessAcquired Companies (taken as a whole) is substantially dependent, other than at-will arrangements that do not include severance which materially restricts the operation of their business (taken as a whole) or “change which is otherwise material to the conduct of control” provisionstheir business (taken as a whole); and
(xix) each amendment, supplement, supplement and modification (whether oral or written) in respect of any of the foregoing.
(iib) Except as set forth in Section 3.15(bPART 3.13(b) of the Radiancy Disclosure ScheduleOF THE DISCLOSURE LETTER, as of the date hereof, all of the Radiancy Business Contracts are each Contract identified or required to be identified in PART 3.13
(a) OF THE DISCLOSURE LETTER is in full force and effect and are is valid and enforceable in accordance with their its terms except and neither any Acquired Company nor, to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) Knowledge of the Radiancy Disclosure ScheduleSellers, as of the date hereof, no Radiancy Group member any other party thereto is in breach in or default of any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contractobligations thereunder.
Appears in 1 contract
Contracts. (ia) Section 3.15(aSchedule 2.19(a) contains a true and complete list of each of the Radiancy Disclosure Schedule sets forth an Contracts (true and complete copies or, if none, reasonably complete and accurate list written descriptions of which, together with all amendments and supplements thereto and all waivers of any terms thereof, have been made available to Purchaser prior to the execution of this Agreement), including the names of the following Contracts parties thereto and the dates thereof and a description of whether such Contacts are written or oral, to which any member of the Radiancy Group engaged in the Radiancy Business Company or a Subsidiary is a Party party or by which any member of the Radiancy Group is bound that is primarily used inAssets are bound, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):including:
(i) each Contract (other than purchase orders for Inventory) that involves performance of employment and consulting agreements related to services or delivery of goods or materials by any member of the Radiancy Group engaged provided in the Radiancy Business of an amount or value in excess of $25,000Business;
(ii) each Contract (licenses, licensing arrangements and other than purchase orders contracts providing in whole or in part for Inventory) that involves performance of services the use of, or delivery of goods limiting the use of, any Company Intellectual Property, or materials otherwise relating to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000Company Software and Systems;
(iii) each Lease, rental brokerage or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting finder’s agreements relating the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)transactions contemplated hereby;
(iv) each Contract in respect agreements, outstanding orders, statements of Intellectual Property (work and other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party contracts for the Radiancy purchase or sale of materials, supplies, products or services with customers or vendors that are provided in connection with the Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative lease agreements providing for the leasing of a group of employeespersonal property contained in the Assets;
(vi) each joint venture, partnership, partnership and other Contract (however named) similar contracts involving a sharing of profits, losses, costs, profits or liabilities by any member of expenses with respect to the Radiancy Group with any other PersonBusiness;
(vii) asset purchase agreements and other acquisition or divestiture agreements, regarding the sale, lease or disposal of any agreement relating to indebtedness for borrowed money or extensions of creditAssets;
(viii) each Contract containing covenants that restrict any contracts or agreements under which the business activity of Company receives any member of product or service used or relied upon in connection with the Radiancy Group, including, but not limited to, any exclusivity covenantsproducts or services provided by the Company, or limit otherwise in connection with the freedom of any member of the Radiancy Group to engage in any line of business Business, including hosting, licensed software, databases or to compete with any Personother data suppliers, investigative services, web or other electronic searches, legal services, accounting services, and other outsourced services;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of BusinessLease Documents;
(x) any employment memorandums of understanding, letters of intent or consulting Contract similar agreements with potential or prospective customers;
(xi) settlement agreements;
(xii) contracts, licenses or other agreements relating to Debt;
(xiii) contracts, licenses or other agreements with any Business Employee, governmental authority;
(xiv) contracts or other agreements with any consultant law firms or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisionslegal service providers; and
(xixv) each amendmentcontracts, supplement, and modification licenses or other agreements providing for the payment of commissions or referral fees.
(whether oral b) Each Contract to which the Company or written) in respect of Subsidiary is a party or by which any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts Assets are bound is in full force and effect and are constitutes a legal, valid and binding agreement, enforceable in accordance with their terms its terms, except to the extent that as such enforceability (i) may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws Laws relating to the enforcement of creditors’ rights generally, generally and (ii) is subject to by general principles of equity. Except as disclosed in Schedule 2.19(b), there is no event of default or event or condition that, after notice or lapse of time or both, would constitute a violation, breach or event of default under any Contract on the part of the Company or, to the knowledge of Seller and/or the Company, any other party thereto.
(c) Nether the Company nor either Subsidiary is a party to or bound by any Contract that (i) automatically terminates or allows termination by the other party thereto upon consummation of the transactions contemplated by this Agreement or (ii) contains any covenant or other provision which limits the Company’s or Subsidiary's ability to compete with any Person in any line of business or in any area or territory or which contains any covenant that otherwise purports to restrict the business activity of the Company or Subsidiary or limits its ability to engage in any line of business.
(d) Schedule 2.19(d) lists all Government Bids and, with respect to each such Government Bid, (i) the prospective customer agency and title; (ii) the date of proposal submission; (iii) Except as set forth in Section 3.15(cthe expected award date, if known; (iv) the estimated period of performance, if known; and (v) the estimated value based on the proposal, if any. The Company has delivered to Purchaser true, correct and complete copies of all Government Bids and all documentation and correspondence related thereto.
(e) The Company and each Subsidiary thereof has fully complied with all terms and conditions of each Government Bid to which it is a party, has performed all obligations required to be performed by it thereunder, and has complied with all statutory and regulatory requirements applicable to each of the Radiancy Disclosure ScheduleGovernment Bids. The representations, certifications and warranties, if any, made by the Company and each Subsidiary thereof with respect to the Government Bids were accurate in all respects as of their effective date, and the date hereofCompany and each Subsidiary thereof has fully complied with any and all such certifications. With respect to the Government Bids, no Radiancy Group member is in breach in any material respect of Governmental or default under (and to PHMD’s Knowledge, no event has occurred which with notice Regulatory Authority or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party Person has notified the Company or any Subsidiary thereof, either orally or in writing, of any actual or alleged violation or breach of any statute, regulation, representation, certification, disclosure obligation, contract term, condition, clause, provision or specification that could reasonably be expected to any such Business Contract in breach in any material respect of or default under such Business Contracthave an adverse effect on the Business.
Appears in 1 contract
Sources: Stock Purchase Agreement (China Healthcare Acquisition Corp.)
Contracts. (i) Section 3.15(a) of the Radiancy Disclosure Schedule 4.15 sets forth an a complete and accurate list of all of the following Contracts contracts in the categories set forth below to which the Company or any member of the Radiancy Group engaged in the Radiancy Business its Subsidiaries is a Party party or by which any member of their respective assets are bound, and which contain obligations of the Radiancy Group is bound that is primarily used in, Company or its Subsidiaries in excess of $100,000 or which are otherwise necessary for, material to the operation business of the Radiancy Business Company and its Subsidiaries taken as a whole (collectively, the “Radiancy Business "Contracts”):"). Each Contract is in full force and effect and enforceable against the parties thereto. Neither Seller, the Company, nor any of its Subsidiaries has received written notice of a cancellation of or an intent to cancel any Contract whose cancellation, individually or in the aggregate, would have a Material Adverse Effect. To Seller's knowledge, there exists no breach or event of default on the part of the Company or its Subsidiaries with respect to such Contracts which would, individually or in the aggregate, have a Material Adverse Effect. The following are the categories of Contracts covered by this Section 4.15:
(i) each Contract all contracts and agreements (other than (A) Insurance Arrangements, (B) open trade accounts with respect to the purchase orders for Inventory) that involves performance or sale by the Company or its Subsidiaries of services supplies or delivery of goods or materials by any member of the Radiancy Group engaged products in the Radiancy Business ordinary course of an business, or (C) leases of real property listed in Schedule 4.19 or not required to be listed thereon) with respect to which the aggregate amount reasonably expected to be paid or value received thereunder in excess of the future exceeds $25,000100,000 per annum;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services all contracts and agreements with officers, full-time employees or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000directors;
(iii) each Leaseinvestment management agreements, rental investment custody agreements and similar contracts and agreements (including agreements pursuant to which the Company or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, its Subsidiaries has (A) deposited funds in order to qualify as an approved or any leasehold eligible insurer or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000B) pledged funds to secure obligations under reinsurance contracts);
(iv) each Contract all mortgages, indentures, security agreements, notes, loan agreements, other debt obligations for borrowed money, guarantees of debt obligations for borrowed money (including guarantees by way of acting as guarantor, surety, cosigner, endorser, comaker, indemnitor or otherwise, but excluding guarantees in respect of Intellectual Property Insurance Arrangements entered into in the ordinary course of business) or agreements to acquire any debt obligations for borrowed money of others (other than licenses debt securities acquired for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Businessinvestment);
(v) each collective bargaining agreement all contracts and other Contract agreements prohibiting or materially limiting the ability of the Company or its Subsidiaries to engage in any business or compete with any labor union or other employee representative of a group of employeesperson;
(vi) each any contract (other than Insurance Arrangements) with respect to a joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, venture or liabilities by any member of the Radiancy Group with any other Personpartnership arrangement;
(vii) any agreement relating all licenses granted by or to indebtedness for borrowed money the Company or extensions of creditits Subsidiaries which relate in whole or in part to Intellectual Property Rights;
(viii) the name of each Contract containing covenants that restrict bank or other financial institution from which credit commitments (other than repurchase agreements, reverse repurchase agreements or dollar reverse repurchase transactions) to the business activity Company and its Subsidiaries are outstanding, and a brief description of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Personsuch commitments;
(ix) any agreement providing for indemnification by any member other contracts, agreements or commitments (other than Insurance Arrangements) that are material to the business of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;Company and its Subsidiaries taken as a whole; and
(x) any employment all letters of credit, trust arrangements and structured settlements entered into by the Company or consulting Contract with any Business Employee, its Subsidiaries in the ordinary course of business or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoingotherwise.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contract.
Appears in 1 contract
Contracts. (ia) Section 3.15(aSchedule 4.5(a) of the Radiancy Sphinx Disclosure Schedule sets forth an accurate list Letter identifies (x) each of the Assigned Contracts (each such listed Assigned Contract, a “Material Assigned Contract”) and (y) each Shared Contract (each such listed Shared Contracts, a “Material Shared Contract”), in each case to which any Sphinx Party is a party and which meets any of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business criteria (collectively, the Contracts required to be set forth on Schedule 4.5(a) of the Sphinx Disclosure Letter, the “Radiancy Business Sphinx Material Contracts”):). Each Material Assigned Contract is denoted with a * on Schedule 4.5(a) of the Sphinx Disclosure Letter and each Material Shared Contract is denoted with a ** on Schedule 4.5(a) of the Sphinx Disclosure Letter.
(i) a Contract granting most favored customer pricing to any Person, or any Contract providing for the grant of exclusive sales, distribution, marketing or other exclusive rights, rights of refusal, rights of first negotiation or similar rights and/or terms to any Person, or any Contract materially limiting the freedom of such Sphinx Party to engage in any business or compete with any Person or in any geography, in each Contract (other than purchase orders for Inventory) case, that involves performance will apply to the activities of services Arion or delivery of goods its Affiliates, or materials by any member of Purchased Assets or Purchased Shares after the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000Closing;
(ii) each a Contract (pursuant to which such Sphinx Party is a lessor or lessee of any real property or any office furniture, fixtures or other than purchase orders for Inventory) that involves performance of services personal property involving payments by any Purchased Entity or delivery of goods or materials to any member in respect of the Radiancy Group engaged in Purchased Assets or the Radiancy Business of an amount or value in excess of $25,0001,000,000 per annum;
(iii) each Leasea Contract granting a Lien upon any Purchased Asset, rental or occupancy agreementwhich Lien secures an obligation in excess of $500,000, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)Sphinx Permitted Liens;
(iv) each a Contract in respect for the sale or provision by such Sphinx Party of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by Products to a third Party party for their own use and not for resale, sublicensing or otherwise providing the Products to third parties involving total bookings in excess of $3,000,000 for the Radiancy Business)three most recently completed fiscal years of Sphinx, in the aggregate;
(v) each collective bargaining agreement and other a Contract to for the purchase by such Sphinx Party of materials, supplies, equipment or with services for use in the Business or by any labor union or other employee representative Purchased Entity from any supplier involving payments in excess of a group $1,000,000 for the most recently completed fiscal year of employeesSphinx;
(vi) a Contract with (A) any distributor, (B) any original equipment manufacturer or (C) any reseller, pursuant to which such third party is authorized to sell or sublicense or otherwise provide the Products to third parties, in each joint venturecase involving total bookings in excess of $4,000,000 for the three most recently completed fiscal years of Sphinx, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of in the Radiancy Group with any other Personaggregate;
(vii) a Contract pursuant to which such Sphinx Party has licensed to a third party any agreement relating to indebtedness for borrowed money or extensions of creditTransferred Intellectual Property Rights, other than Sphinx Ordinary Course Outbound Licenses;
(viii) each a Contract containing covenants that restrict pursuant to which such Sphinx Party has licensed from a third party or is authorized by a third party to use any Intellectual Property Rights in connection with the business activity of any member of the Radiancy GroupBusiness, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Personother than Sphinx Ordinary Course Inbound Licenses;
(ix) any agreement providing for indemnification by any member partnership, joint venture, or other similar equity investment Contracts that involve a sharing of profits of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of BusinessBusiness with a third party;
(x) any Contract requiring any capital commitment or capital expenditures (including any series of related expenditures) related to the Business in excess of $250,000 individually;
(xi) any Contract that is a settlement, conciliation, or similar agreement with any Government Authority imposing material limitations or material outstanding obligations on the Business;
(xii) each Contract (A) for the employment of, or receipt of any services from, any Business Employee on a full-time, part-time, consulting Contract or other basis providing for annual compensation (consisting of annual base salary and target cash bonus or commissions) in excess of $200,000, (B) which provides for special severance or termination payments (but excluding any obligation or entitlements required by applicable Law) or benefits or (C) which provides for a retention, change of control, transaction or similar bonus, in each case with any Business EmployeeEmployee in each such case in excess of $100,000;
(xiii) any collective bargaining agreement or other Contract with a labor union, works council, labor organization, or group of employees applicable to Business Employees (other than legally required or industry-wide agreements);
(xiv) each mortgage, indenture, security agreement, pledge, note, loan agreement or guarantee or other Contract in respect of or evidencing any consultant Business Indebtedness or contractor in respect of the Radiancy BusinessPurchased Assets in excess of $2,500,000;
(xv) each acquisition, merger, consolidation, recapitalization, sale, divestiture or similar agreement related to the acquisition or sale by the Purchased Entities or by a third party of a business or line of business or assets or equity securities with respect to the Business in the previous five years for aggregate consideration under such Contract in excess of $5,000,000, other than at-Contracts in which the applicable transaction has been consummated and there are no earnouts, contingent payments, indemnification or other obligations ongoing or outstanding by or in favor of any party thereto;
(xvi) each Sphinx Intercompany Agreement that is material to the Business (excluding any Sphinx Intercompany Agreement that will arrangements that do not include severance be terminated effective on or “change of control” provisionsprior the Closing Date); and
(xixvii) any material Sphinx Government Contract.
(b) Except as would not reasonably be expected to be material to the Business: (i) each amendmentSphinx Material Contract is valid, supplementbinding and in full force and effect with respect to, and modification enforceable against, each Sphinx Party that is party thereto and, to the knowledge of Sphinx, each other party thereto, subject to and except as such enforceability may limited by the effect, if any, of applicable bankruptcy and other similar Laws and equitable principles affecting the rights of creditors generally and rules of Law and equitable principles governing specific performance, injunctive relief and other equitable remedies; (whether oral ii) none of the Sphinx Material Contracts have been amended or modified except as set forth therein; (iii) no Sphinx Party is in breach or default in the performance of any of its obligations under any Sphinx Material Contract and, to the knowledge of Sphinx, no other party to such Sphinx Material Contract is in breach or default thereunder; and (iv) no event exists which, with the giving of notice or lapse of time or both, would constitute a breach, default or event of default on the part of any Sphinx Party under any Sphinx Material Contract to which it is a party or, to the knowledge of Sphinx, any other party thereto. Sphinx has, to the extent in Sphinx’s possession or under its reasonable control, provided Arion true, complete and correct copies of all written, and, to the knowledge of Sphinx, written summaries of all oral, Sphinx Material Contracts. With respect to each such Person that is a counterparty to the Sphinx Material Contracts, (x) there are no outstanding or, to the knowledge of Sphinx, threatened disputes or controversies with such Person, other than disputes which would not, individually or in the aggregate, reasonably be expected to be material to the Business and (y) such Person has not terminated or, to the knowledge of Sphinx, threatened or stated an intention to terminate, or materially decreased or adversely altered, its relationship with Sphinx or any Subsidiary of Sphinx, with respect to the Business or any Purchased Entity or, to the knowledge of Sphinx, threatened or stated an intention to do any of the foregoing.
(iic) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability Sphinx has not (i) may be limited by bankruptcybreached or violated any Law, insolvencycertification, reorganizationrepresentation, moratorium clause, provision or other similar laws relating requirement pertaining to creditors’ rights generally, and any Sphinx Government Contract; (ii) is subject to general principles of equity.
been suspended or debarred from bidding on government contracts by a Governmental Authority; (iii) Except as set forth to the knowledge of Sphinx, been audited or investigated by any Governmental Authority with respect to any Sphinx Government Contract; (iv) conducted or initiated any internal investigation or made any disclosure with respect to any alleged or potential irregularity, misstatement or omission arising under or relating to a Sphinx Government Contract; (v) received from any Governmental Authority or any other Person any written notice of breach, cure, show cause or default with respect to any Sphinx Government Contract; (vi) had any Sphinx Government Contract terminated by any Governmental Authority or any other Person for default or failure to perform; or (vii) entered any Sphinx Government Contracts payable on a cost-reimbursement basis. Sphinx has established and maintains adequate internal controls for compliance with the Sphinx Government Contracts. All pricing discounts have been properly reported to and credited to the customer and all invoices and claims for payment, reimbursement or adjustment submitted by Sphinx were current, accurate and complete in Section 3.15(c) of the Radiancy Disclosure Schedule, all material respects as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contracttheir respective submission dates.
Appears in 1 contract
Sources: Purchase Agreement (Symantec Corp)
Contracts. (i) Section 3.15(a) 3.5.2 of the Radiancy Disclosure Schedule Letter sets --------- forth an accurate list of the following Contracts material agreements (whether written or oral) with respect to the MSC/SFI Entities and to which any member of the Radiancy Group engaged in the Radiancy Business MSC/SFI Entity is a Party party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, herein, the “Radiancy Business "Material Contracts”"):
(a) all contracts or agreements involving amounts in excess of US $50,000 for MSC/SFI or US $15,000 for any Company or which are cancelable by a Company only after giving at least thirty (30) days' notice;
(b) all loan, financing, security, credit or other contracts evidencing or relating to indebtedness, guarantees, or Liens;
(c) all contracts with distributors, dealers or sales representatives;
(d) all management, employment, or agency contracts and collective bargaining contracts;
(e) all contracts providing employee benefits not listed in Section 3.5.8 of the Disclosure Letter;
(f) all contracts which contain an obligation of confidentiality with respect to information furnished by an MSC/SFI Entity to a third party or received by an MSC/SFI Entity from a third party;
(g) all contracts containing covenants limiting the freedom of an MSC/SFI Entity to compete in any line of business or with any Person or in any geographic area or market or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any MSC/SFI Entity's assets;
(h) all contracts relating to patents, trademarks, trade names or copyrights or applications for any thereof, inventions, trade secrets or other proprietary information;
(i) each Contract all contracts for the past or present disposal of waste;
(other than j) the Leases;
(k) all outstanding purchase orders for Inventoryor sale orders ("Sales Orders") that involves performance of services or delivery of goods or materials by any member involve commitments of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of US $25,00050,000 for MSC/SFI or US $15,000 for any Company;
(iil) each Contract (all partnership, joint venture or other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged similar agreements currently in the Radiancy Business of an amount or value in excess of $25,000effect;
(iiim) each Lease, rental all agreements relating to the acquisition or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or disposition of any leasehold or other interest inReal Property, any personal property MSC/SFI Entity's assets or the Business (except personal property leases and installment and conditional sales agreements having aggregate payments whether by merger, sale of less than $50,000)stock, sale of assets or otherwise) within the past ten (10) years;
(ivn) each Contract in respect of Intellectual Property (other than licenses for shrinkwrapall options, clickwrap licenses, franchise or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business)agreements;
(vo) each collective bargaining agreement and other Contract to or all contracts with any labor union affiliate, shareholder, officer, director, consultant or other employee representative of a group an MSC/SFI Entity or any relative of employees;any of the foregoing; and
(vip) each joint venture, partnership, and all other Contract (however named) involving a sharing contracts entered into other than in the ordinary course of profits, losses, costs, or liabilities by any member of the Radiancy Group business consistent with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Grouppast practices, including, but not limited to, any exclusivity covenants, contracts (i) with suppliers for the purchase of goods or limit the freedom services in excess of any member normal requirements or at prices in excess of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Groupcurrent market price, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Except as set forth for the sale by an MSC/SFI Entity of goods or services at prices not reasonably calculated to produce gross profit margins consistent with those achieved by an MSC/SFI Entity during its three (3) prior fiscal years, or (iii) which contain terms or conditions which an MSC/SFI Entity cannot reasonably expect to fulfill in Section 3.15(b) their entirety. MSC/SFI has delivered to Bekaert accurate and complete copies of each Material Contract, in each case with all modifications and amendments thereto. Each Material Contract is a valid and binding agreement of the Radiancy Disclosure ScheduleMSC/SFI Entity, as of the date hereofcase may be, all of the Radiancy Business Contracts are and is in full force and effect. There has been no modification or termination of any Material Contract under circumstances which could reasonably be expected to have a material adverse effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equityon an MSC/SFI Entity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contract.
Appears in 1 contract
Contracts. (ia) Section 3.15(a) Disclosure. As of the Radiancy Disclosure date of this Agreement, Schedule 4.11 sets forth an a complete and accurate list of all of DigitalQuake's Contracts of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used incategories, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):as applicable:
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged Contracts not made in the Radiancy Business ordinary course of an amount or value in excess of $25,000business;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services Manufacturing or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000joint development agreements;
(iii) each LeaseLicense agreements or royalty agreements, rental whether DigitalQuake is the licensor or occupancy agreement, license, installment and conditional sale agreement, and licensee thereunder (other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000shrink-wrap licenses);
(iv) each Contract in respect of Intellectual Property Confidentiality and non-disclosure agreements (other than licenses for shrinkwrap, clickwrap whether DigitalQuake is the beneficiary or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Businessobligated party thereunder);
(v) each collective bargaining agreement and other Contract Customer orders or sales contracts under which the customer is to make a payment after the date hereof of $10,000 or with any labor union or other employee representative of a group of employeesmore;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, Original equipment manufacturer agreements or liabilities by any member of the Radiancy Group with any other Persondistributor agreements;
(vii) any agreement relating to indebtedness for borrowed money or extensions of creditResearch agreements;
(viii) each Contract Output or requirement agreements;
(ix) Contracts involving future expenditures or Liabilities, actual or potential, in excess of $10,000 after the date hereof or otherwise material to the Business or the Assets;
(x) Contracts or commitments relating to commission arrangements with others;
(xi) Employment contracts, consulting contracts and severance agreements, including those (A) to employ or terminate executive officers or other personnel and other contracts with present or former officers or directors of DigitalQuake or (B) that will result in the payment by, or the creation of any Liability to pay on behalf of National or DigitalQuake any severance, termination, "golden parachute," or other similar payments to any present or former personnel following termination of employment or otherwise as a result of the consummation of the transactions contemplated by this Agreement;
(xii) Agreements providing for indemnification by DigitalQuake of present or former directors or officers of DigitalQuake;
(xiii) Promissory notes, loans, agreements, indentures, evidences of indebtedness, letters of credit, guarantees, or other instruments relating to an obligation to pay money, whether DigitalQuake shall be the borrower, lender or guarantor thereunder (excluding credit provided by DigitalQuake in the ordinary course of business to purchasers of its products and obligations to pay vendors in the ordinary course of business and consistent with past practice);
(xiv) Contracts containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit limiting the freedom of DigitalQuake or any member officer, director or employee of the Radiancy Group DigitalQuake, to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of Person that relates directly or indirectly to the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(xxv) any employment or consulting Any Contract with any Business Employeea foreign, federal, state or local government or any consultant agency or contractor department thereof;
(xvi) Any Contract with a Related Party;
(xvii) Leases of real or personal property;
(xviii) Any Contract that relates to corporate governance, the Radiancy Businessvoting or transfer of equity securities, other than at-will arrangements the registration of any securities under the Securities Act or that do not include severance grants any redemption or “change of control” provisionspreemptive rights; and
(xixix) each amendmentAny other material Contract. True, supplement, correct and modification (whether oral or written) in respect complete copies of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are in full force listed on Schedule 4.11, including all amendments and effect and are enforceable in accordance with their terms except supplements thereto, have been delivered to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equityNational.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contract.
Appears in 1 contract
Contracts. (ia) Section 3.15(a) Appendix B of the Radiancy Disclosure Schedule sets forth this Agreement provides an accurate list of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business Seller Company is a Party party or by which any member of the Radiancy Group Seller Company is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business Seller Company of an amount or value in excess of $25,00050,000; provided, that Seller shall not be required to list any customer Contract;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business Seller Company of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Business Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(viiv) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group Seller Company with any other Person;
(viiv) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viiivi) each Contract containing covenants that restrict the business activity of any member of the Radiancy GroupSeller Company, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group Seller Company to engage in any line of business or to compete with any Person;
(ixvii) any agreement providing for indemnification by any member of the Radiancy GroupSeller Company, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(xviii) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xiix) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(iib) Except as set forth otherwise might be noted in Section 3.15(b) of the Radiancy Disclosure Schedulethis Agreement or any associated Transaction Documents, as of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iiic) Except as set forth otherwise might be noted in Section 3.15(c) of the Radiancy Disclosure Schedulethis Agreement or any associated Transaction Documents, as of the date hereof, no Radiancy Group member Seller Company is in breach in any material respect of or default under (and to PHMD’s Sellers’ Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Sellers’ Knowledge, is any other Party party to any such Business Contract in breach in any material respect of or default under such Business Contract.
Appears in 1 contract
Contracts. (i) Section 3.15(a) of the Radiancy The Disclosure Schedule sets forth an accurate list describes each of the following Contracts agreements and contracts in effect as of the date of this Agreement to which any member of the Radiancy Group engaged in Company or the Radiancy Business Subsidiaries is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):bound:
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000employment agreement;
(ii) each Contract (other than purchase orders for Inventory) covenant not to compete that involves performance of services or delivery of goods or materials to any member restricts the operation of the Radiancy Group engaged in business of the Radiancy Business of an amount or value in excess of $25,000Company and the Subsidiaries as presently conducted;
(iii) each Leaseagreement or contract with Seller or any affiliate of Seller (other than the Company or the Subsidiaries) or any current officer or director of any of the Company, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use ofSubsidiaries, or any leasehold Seller (other than (A) employment agreements the non–disclosure of which does not constitute a misrepresentation under clause (i) above, (B) Seller’s Plans (as defined in Section 4(p)) or other interest in, any personal property (except personal property leases and installment and conditional sales C) agreements having aggregate payments of less than $50,000relating to intercompany loans or advances);
(iv) each Contract in respect operating lease (as lessor or lessee) of Intellectual any Company Property or any other real or tangible personal property (other except any lease or Real Property Lease by the Company or a Subsidiary as lessee calling for rental payments of less than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business$100,000 per year);
(v) each collective bargaining agreement and other Contract to license (as licensor or with licensee) of any labor union software, patents, trademarks, trade names, service marks, internet domain names, copyrights, or other employee representative intellectual property material to the Company and the Subsidiaries (other than (1) items licensed to the Company or any of a group the Subsidiaries pursuant to licenses (A) for commercially available computer software, or (B) associated with purchased or leased equipment or fixtures; (2) licenses solely between or among any of employeesthe Company and the Subsidiaries; and (3) licenses solely between or among any of the Company and/or the Subsidiaries, on the one hand, and Seller and/or its affiliates (other than the Company and the Subsidiaries), on the other hand, which exclusively address the Licensed Marks (as defined in Section 8(c)(ii)) addressed in Section 8(c) hereof);
(vi) each joint venture, partnership, and collective bargaining agreement or other Contract (however named) involving contract with a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Personlabor union;
(vii) any agreement relating to indebtedness for borrowed money management, service, consulting or extensions other similar contract under which there exists an aggregate future liability in excess of credit$100,000 per contract;
(viii) each Contract containing covenants material written agreement for the purchase or sale of supplies or products that restrict the business activity calls for performance over a period of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Personmore than one year;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided with respect to customers intercompany loans or vendors advances, agreement or contract under which any money has been borrowed or loaned or any note, bond, indenture, or other evidence of indebtedness has been issued, directly or indirectly guaranteed or assumed (other than endorsements for the purpose of collection in the Ordinary Course ordinary course of Businessbusiness);
(x) any employment or consulting Contract with any Business Employeemortgage, deed of trust, security agreement, purchase money agreement, conditional sales contract, or capital lease (other than (A) any consultant purchase money agreement, conditional sales contract, or contractor capital lease evidencing liens only on tangible personal property under which there exists an aggregate future liability not in excess of $100,000 per contract or lease; and (B) protective filings of financing statements under the Radiancy BusinessUniform Commercial Code or similar statute);
(xi) partnership, joint venture, shareholders’ or other similar agreement;
(xii) contract relating to the future disposition or acquisition of any assets and properties, other than at-will arrangements (A) sales or acquisitions of inventory or supplies in the ordinary course of business and budgeted capital expenditures or (B) dispositions or acquisitions in the ordinary course of business, consistent with past practice that do not include severance involve payments by any party thereto that exceed, or “change the delivery of control” provisionsassets and properties with a fair value that exceeds, in each such instance, $100,000; and
(xixiii) other agreement or contract not made in the ordinary course of business, except those calling for payments of less than $100,000 per year in the aggregate. To Seller’s knowledge, each amendmentagreement or contract required to be described in the Disclosure Schedule under this Section 4(m) (collectively, supplementthe “Contracts”) is valid, binding, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are effect, enforceable by the Company or the Subsidiaries in accordance with their terms its terms, except to the extent that as such enforceability (i) may be limited by bankruptcy, insolvency, reorganizationmoratorium, moratorium or and other similar laws relating to affecting creditors’ rights generally, generally and (ii) is subject to by general principles of equity.
(iii) Except as set forth in Section 3.15(c) . None of Seller, the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice Company or the passage Subsidiaries is (with or without the lapse of time or both would constitute a the giving of notice, or both) in breach of, or in any material respect of or default under) , any Business Contract norof the Contracts, except if such breach or default, individually or in the aggregate, has no Material Adverse Effect, and, to PHMDSeller’s Knowledgeknowledge, is any no other Party party to any such Business Contract of the Contracts is (with or without the lapse of time or the giving of notice, or both) in breach of, or in default under, any material respect of the Contracts, except if such breach or default under such Business Contractdefault, individually or in the aggregate, has no Material Adverse Effect. A true and correct copy of each of the written Contracts and an accurate summary of each of the oral Contracts has been made available to Buyer.
Appears in 1 contract
Sources: Stock Purchase Agreement (International Multifoods Corp)
Contracts. (ia) Section 3.15(a) SCHEDULE 5.20 describes all contracts, agreements, leases, commitments, instruments, plans, permits or licenses, whether written or oral, with respect to the Division to which the Seller is a party or is otherwise bound, of the Radiancy Disclosure Schedule sets forth an accurate list of types described below (the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business "Contracts”"):
(i) each Contract (all agreements, commitments, purchase orders, sale confirmations or other similar agreements for the sale by the Division of products or services, or the purchase by the Division of raw materials, products or services, other than purchase orders those that are for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of amounts not to exceed $25,0005,000;
(ii) each Contract (all agreements, commitments, purchase orders, sale confirmations or other similar agreements for the purchase by the Division of machinery, equipment or other personal property other than purchase orders those that are for Inventory) that involves performance of services or delivery of goods or materials amounts not to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of exceed $25,0005,000;
(iii) each Leaseall capitalized leases, rental or occupancy agreementpledges, license, installment and conditional sale agreement, or title retention agreements concerning assets used in the business of the Division;
(iv) all employment agreements and other Contract affecting commitments and all consulting or severance agreements or arrangements;
(v) all agreements relating to the ownership of, leasing of, title to, use of, consignment or any leasehold or other interest in, any lease of personal property (except personal property leases and installment and conditional sales whether the Seller is lessee, sublessee, lessor or sublessor), other than such agreements having aggregate that provide for annual payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees5,000;
(vi) each joint ventureall license, partnership, and royalty or other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of agreements relating to the Radiancy Group with any other PersonProprietary Rights;
(vii) all agreements prohibiting the Seller from freely engaging in the business of the Division in any agreement relating to indebtedness for borrowed money or extensions of creditgeographic area;
(viii) each Contract containing covenants that restrict the business activity of any member all agreements to provide rebates to customers of the Radiancy GroupDivision, including, but to the extent not limited to, any exclusivity covenants, or limit reflected as a liability on the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any PersonFinancial Statements;
(ix) any agreement providing for indemnification all distribution, sales agency and other similar agreements relating to the marketing, sale or distribution by any member the Division of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;its products; and
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, agreements other than at-will arrangements that do not include severance those covered by clauses (i) through (viii) above relating to the Division and involving payment or “change receipt of control” provisions; and
(xi) each amendment, supplement, more than $2,500 in the aggregate and modification (whether oral or written) in respect of any of all agreements which otherwise materially affect the foregoingDivision.
(iib) Except as set forth disclosed in Section 3.15(b) of the Radiancy Disclosure Schedule, as of the date hereofSCHEDULE 5.20, all of the Radiancy Business Contracts which are in full force and effect and are enforceable in accordance with their terms except intended to be assigned to the extent that such enforceability (i) may be limited Purchaser hereunder are fully assignable to the Purchaser by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contract.Seller
Appears in 1 contract
Contracts. (i) Section 3.15(a) Schedule 4.12 is a true and complete list of the Radiancy Disclosure Schedule sets forth an accurate list all of the following Contracts to which any member Contractual Obligations of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business Target Companies (collectively, the “Radiancy Business Contracts”):) as of the date hereof:
(ia) each Contract (other than purchase orders for Inventory) that involves performance of services all Contractual Obligations involving material written employment or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000;
(iii) each Leaseconsulting agreements, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000);
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business);
(v) each collective bargaining agreement and other Contract to agreements or with any labor union or other employee representative of a group of employees;
(vib) each joint ventureall Contractual Obligations with respect to Owned Intellectual Property, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, Licensed Intellectual Property or liabilities by any member of the Radiancy Group with any other PersonCompany Trade Secrets;
(viic) all Contractual Obligations for the lease of (i) real property, and (ii) personal property providing for annual rents of $100,000 or more;
(d) all Contractual Obligations to sell or otherwise dispose of Assets having a fair market value in excess of $100,000 other than in the ordinary course of Business;
(e) all Contractual Obligations under which a Target Company has or will have after the Closing any agreement relating material liability or obligation to or for the benefit of a Shareholder or Affiliate of the Company (other than contracts entered into with customers in the ordinary course of Business);
(f) all Contractual Obligations under which a Target Company has liability or obligation for indebtedness for borrowed money or extensions in excess of credit$100,000;
(viiig) each Contract containing covenants that restrict all Contractual Obligations under which a Target Company is or may become obligated to pay any amount with respect to a deferred or conditional purchase price, indemnification obligations, purchase price adjustment or otherwise in connection with any
(i) acquisition or disposition of all or substantially all of the assets or securities constituting a line of business activity of any member of the Radiancy GroupPerson, including(ii) merger, but not limited to, any exclusivity covenantsconsolidation or other business combination, or limit (iii) series or group of related transactions or events of a type specified in subclauses (i) and (ii);
(h) all Contractual Obligations for the freedom purchase of materials, supplies, goods, services, equipment or other assets providing for either (i) annual payments by a Target Company of $100,000 or more or (B) aggregate payments by a Target Company of $1,000,000 or more;
(i) all Contractual Obligations for the sale of products or provision of services by a Target Company (other than ordinary course purchase orders, sales orders or customer contracts) that involve products or services which provide for payments in excess of $100,000 in any calendar year; and
(j) all Contractual Obligations imposing a material restriction on the right or ability of a Target Company, or, after the Effective Time, the right or ability of Parent or the Surviving Corporation of any member of the Radiancy Group their Affiliates (A) to engage compete in any line of business or to compete with any Person or in any area or which would limit the freedom of the Target Company or Parent after the Closing Date (including granting exclusive rights or rights of first refusal to license, market, sell or deliver any of the products or services offered by a Target Company), (B) to acquire any product or other asset or any services from any Person, to sell any product or other asset to or perform any services for any Person or to transact business or deal in any other manner with any Person, or (C) develop, distribute or license any technology, Intellectual Property or Intellectual Property rights;
(k) all Contractual Obligations not in the ordinary course of business and that involve expenditures or receipts of a Target Company in excess of $100,000 in any calendar year;
(l) all Contractual Obligations under which (A) a Person has directly or indirectly guaranteed any liabilities or obligations of a Target Company, (B) a Target Company has directly or indirectly guaranteed liabilities or obligations of another Person;
(ixm) all Contractual Obligations related to the creation of any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided Lien with respect to customers or vendors in the Ordinary Course of Businessa Target Company;
(xn) any employment all Contractual Obligations relating to the acquisition, issuance or consulting Contract with any Business Employeetransfer of securities or shareholder interest, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisionsregistered capital of a Target Company;
(o) all powers of attorney that are effective and outstanding;
(p) all Contractual Obligations for the sharing of revenues, profits, costs or liabilities or any other similar arrangements including any partnership or joint venture; and
(xiq) each amendment, supplement, and modification (whether oral or written) all other Contractual Obligations not made in respect the ordinary course of any of the foregoing.
(ii) business that is material to a Target Company. Except as set forth in Section 3.15(b) on Schedule 4.12, each Contract is a legal, valid and binding obligation of the Radiancy Disclosure Scheduleapplicable Target Company, as of and, to the date hereofCompany’s Knowledge, all of the Radiancy Business Contracts are in full force other parties thereto, enforceable against the Target Company and effect and are enforceable other parties in accordance with their terms its terms, except to the extent that as such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or other similar laws relating to affecting creditors’ rights generally, generally and (ii) is subject to general principles of equity (whether considered in a proceeding at law or in equity.
(iii) ). Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereofon Schedule 4.12, no Radiancy Group member breach or default by the applicable Target Company under any Contract has occurred and is in breach continuing in any material respect of or default under (respect, and to PHMD’s Knowledge, no event has occurred which with notice or the passage lapse of time or both would constitute such a breach in any material respect of or default under) any Business Contract nor, to PHMDdefault. To the Company’s Knowledge, is except as set forth on Schedule 4.12, no breach or default by any other Party to Person under any Contract has occurred and is continuing, and no event has occurred which with notice or lapse of time would constitute such Business Contract in a breach in any material respect of or default under such Business Contractdefault.
Appears in 1 contract
Sources: Merger Agreement (Ii-Vi Inc)
Contracts. (ia) Section 3.15(a) of the Radiancy Company Disclosure Schedule sets forth an accurate Letter contains a list of the following Contracts to which the Company or any member of the Radiancy Group engaged in the Radiancy Business Subsidiary is a Party party or by which the Company or any member Subsidiary or any of their respective properties or assets are bound or affected as of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation date of this Agreement (each of the Radiancy Business (collectively, foregoing will be referred to herein collectively as the “Radiancy Business Company Material Contracts”):
(i) each Contract any “material contract” (other than purchase orders for Inventoryas such term is defined in Item 601(b)(10) that involves performance of services or delivery of goods or materials by any member of Regulation S-K under the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000Exchange Act);
(ii) each Contract (other than purchase orders for Inventory) that involves performance the ten largest provider contracts measured in terms of services or delivery payments received from the Company and its Subsidiaries and the ten largest insured customer contracts measured in terms of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000members covered;
(iii) each Leasepromissory notes, rental loans, agreements, indentures, evidences of indebtedness or occupancy agreementother instruments providing for (A) the borrowing or lending of money, licensewhether as borrower, installment lender or guarantor, (B) the placement of a Lien on the assets of the Company or its Subsidiaries (other than Permitted Liens), or (C) the restriction on the Company’s or any of its Subsidiaries’ ability to incur indebtedness or Liens (it being understood that (x) trade payables incurred in the ordinary course of business consistent with past practice, (y) ordinary course business funding mechanisms between the Company and conditional sale agreementits customers and providers consistent with past practice, and other Contract affecting (z) guarantees of indebtedness by the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases Company and installment and conditional sales agreements having aggregate payments its Subsidiaries to wholly owned subsidiaries of less than $50,000the Company will not be considered indebtedness for purposes of this provision);
(iv) each any other Contract in respect restricting the payment of Intellectual Property (other than licenses for shrinkwrap, clickwrap dividends or the repurchase of stock or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business)equity;
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employeesContracts;
(vi) each joint venture, partnershippartnership or limited liability company agreements or other similar agreements or arrangements relating to the formation, and creation, operation, management or control of any joint venture, partnership or limited liability company under which the Company or any Subsidiary must share revenues, has or may have any liability to provide additional equity or debt capital or has any liability for the obligations of another Person (other Contract (however named) involving than a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other Personwholly owned subsidiary);
(vii) any agreement relating Contract providing for the acquisition or disposition after the date of this Agreement, directly or indirectly (by merger or otherwise) by the Company or any of its Subsidiaries, of any entity, business, asset or capital stock or other equity interests, if the aggregate consideration (including the assumption of any debt or liabilities) exceeds $5.0 million, in each case, other than with respect to indebtedness for borrowed money the acquisition or extensions dispositions of creditmarketable securities held in the Company’s and its Subsidiaries’ investment portfolios that were made in the ordinary course of business consistent with past practice;
(viii) each any treaty, agreement or other Contract containing covenants for reinsurance entered into other than in the ordinary course of business consistent with past practice;
(ix) leases for real or personal property involving annual expense in excess of $500,000;
(x) any non-competition agreement or any other agreement or arrangement that limits or otherwise restricts the Company or any of its Subsidiaries or purports to restrict Affiliates thereof that are not controlled by the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, Company from engaging or limit the freedom of any member of the Radiancy Group to engage competing in any line of business or to compete with in any Person;
geographic area in any material respect (ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers customary exclusivity provisions or vendors arrangements with providers of health care services entered into in the Ordinary Course ordinary course of Businessbusiness consistent with past practice);
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification Contract providing for an Affiliate Transaction that is (whether oral or writtenshould be) in respect of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) 3.24 of the Radiancy Company Disclosure Schedule, as Letter; or
(xii) any other Contract involving the Company’s or any of its Subsidiaries’ (A) right to receive payment or other consideration or (B) obligation to make payment in excess of $2.0 million per annum or $5.0 million in the date hereof, all of aggregate per Contract over the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability unexpired term thereof.
(i) may be limited by bankruptcyNeither the Company nor any Subsidiary is and, insolvencyto the Company’s Knowledge, reorganizationno other party is, moratorium in any material respect, in breach or other similar laws relating to creditors’ rights generallyviolation of, and or default under, any Company Material Contract, (ii) is subject to general principles none of equity.
the Company or any of the Subsidiaries has received any claim of a material default under any such Contract, (iii) Except as set forth in Section 3.15(c) of to the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMDCompany’s Knowledge, no event or condition has occurred or exists which would result in a material breach or violation of, or a material default or loss of a material benefit under, or acceleration of a material right or obligation under, any Company Material Contract (in each case, with or without notice or the passage lapse of time or both would constitute a breach both), and (iv) each Company Material Contract is valid, binding and enforceable in accordance with its terms against the Company and is in full force and effect. The Company has made available to SibCo 1 true and complete copies of all Company Material Contracts, including any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contractamendments thereto.
Appears in 1 contract
Sources: Merger Agreement (Uici)
Contracts. (ia) Section 3.15(a) of the Radiancy Disclosure Except as set forth on Schedule sets forth an accurate list of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for4.12, the operation of Seller, as it relates to the Radiancy Business (collectivelyPurchased Property, the “Radiancy Business Contracts”):is not a party to or bound by:
(i) each Contract any contracts, agreements, instruments, arrangements, guarantees, licenses, commitments, undertakings or understandings that continue to be binding on the Seller (other than purchase orders for Inventoryeach, a “Contract”) that involves performance of services with any current or delivery of goods former employee, director or materials by any member officer of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000Seller;
(ii) each any Contract (other than purchase orders for Inventory) that involves performance of services with any employee, consultant or delivery of goods or materials to any member director of the Radiancy Group engaged in Seller but as to which the Radiancy Business of an amount or value Seller could have aggregate liability in excess of $25,00050,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other any Contract affecting the ownership of, leasing of, title to, use of, or with any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)Affiliate;
(iv) each any Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business)purchase of materials or personal property related to the Purchased Property from any supplier or for the furnishing of services to the Seller that involves, or could reasonably be expected to require, future aggregate annual payments by the Seller of $50,000 or more;
(v) each collective bargaining agreement and other any Contract to for the sale, license or with any labor union lease (as lessor) by the Seller of services, materials, products, supplies or other employee representative assets, owned or leased by the Seller related to the Purchased Property, that involves, or could reasonably be expected to require, future aggregate annual payments to the Seller of a group of employees$50,000 or more;
(vi) each joint venture, partnership, and other any Contract (however named) involving a sharing of profits, losses, costspursuant to which the Seller is the lessor of, or liabilities by permits any member of third party to hold or operate, any real or personal property related to the Radiancy Group with any other PersonPurchased Property;
(vii) any agreement Contract (including, without limitation, loan agreements, credit agreements, notes, bonds, mortgages or indentures) relating to or evidencing indebtedness for borrowed money or extensions money, letters of credit;
, the deferred purchase price of property, conditional sale arrangements, capital lease obligations, obligations secured by a Lien or interest rate or currency hedging activities (viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, including guarantees or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) contingent liabilities in respect of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of the Radiancy Disclosure ScheduleSeller in the amount of $50,000 or more;
(viii) any Contracts relating to any material joint venture, as partnership, strategic alliance or similar arrangement; Table of Contents
(ix) any Contracts which are material to the Seller and which restrict the Seller from disclosing any information concerning or obtained from any other Person;
(x) any non-competition agreement or any other agreement or obligation which purports to limit in any material respect the manner in which, or the localities in which, the business of the date hereofSeller may be conducted;
(xi) any Contract to allocate, all share or otherwise indemnify for Taxes related to the Owned Real Property; or
(xii) any other Contract which is material to the Purchased Property or the operation of the Radiancy Business Plant. The foregoing Contracts and agreements to which the Seller is a party or is bound are collectively referred to herein as “Material Contracts.”
(b) Each Material Contract is valid and binding on the Seller and is in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generallyeffect, and (ii) is subject the Seller has performed all obligations required to general principles of equity.
(iii) Except as set forth be performed by it to date under each Material Contract, except where such noncompliance, individually or in Section 3.15(c) of the Radiancy Disclosure Scheduleaggregate, as of the date hereofwould not be reasonably likely to have a Material Adverse Effect. The Seller has no knowledge of, no Radiancy Group member is in breach in nor has given or received notice of, any material respect of violation or default under (and nor, to PHMD’s Knowledgethe knowledge of the Seller, no event has occurred does there exist any condition which with notice or the passage of time or the giving of notice or both would constitute result in such a breach in any material respect of violation or default under) any Business Contract norMaterial Contract, except where such violations or defaults, individually or in the aggregate, would not be reasonably likely to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contracthave a Material Adverse Effect.
Appears in 1 contract
Contracts. (ia) Section 3.15(aSchedule 2.10(a) of the Radiancy Disclosure Schedule sets forth an accurate a true, correct and complete list of all Contracts of the following categories (Contracts disclosed on
(a) are hereafter referred to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business as "Material Contracts”"):
(i) each Contract Employment contracts and severance agreements, including, without limitation, Contracts (A) to employ or terminate executive officers or other than purchase orders for Inventorypersonnel and other contracts with present or former employees of the Business currently in effect or (B) that involves performance will result in the payment by, or the creation of services any commitment or delivery obligation (absolute or contingent) to pay on behalf of goods Seller or materials by the Company any member severance, termination, "golden parachute," or other similar payments to any present or former employees of the Radiancy Group engaged in Business following termination of employment or otherwise as a result of the Radiancy Business consummation of an amount or value in excess of $25,000the transactions contemplated by this Agreement;
(ii) each Contract Material distribution, franchise, license, sales, commission, consulting agency or advertising contracts which are not cancelable on thirty (other than purchase orders for Inventory30) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000calendar days notice;
(iii) each LeaseMaterial options to buy or sell any property, rental real or occupancy agreementpersonal, license, installment and conditional sale agreement, and other Contract affecting included in the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)Assets;
(iv) Contracts, NVOC Contracts and OCC Contracts each Contract individually involving aggregate expenditures of $100,000 or aggregate receipts in respect excess of Intellectual Property (other than licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for the Radiancy Business)$1,000,000;
(v) each collective bargaining agreement and other Contract Contracts containing covenants limiting the freedom of the Company to or compete with any labor union or other employee representative of a group of employeesPerson during any period following the Closing;
(vi) each Partnership and joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of venture agreements related to the Radiancy Group with any other Person;Business; and
(vii) any agreement relating Commitments for capital expenditures that have been approved or made prior to indebtedness for borrowed money or extensions the date of credit;
(viii) each Contract containing covenants that restrict the business activity this Agreement in excess of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;
(ix) any agreement providing for indemnification $250,000 by any member of the Radiancy Group, other than indemnification provided to customers or vendors in the Ordinary Course of Business;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) Seller in respect of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) of Business or the Radiancy Disclosure Schedule, Company and that remain outstanding as of the date hereof.
(b) Each of Seller, all the Company, NVOC or OCC (as applicable) has furnished or shall have made available to Buyer prior to the Closing a true and correct and complete copy of each Material Contract. Each Material Contract assigned or to be assigned (i) by Seller to the Radiancy Business Contracts are Company pursuant to the ACA, (ii) by NVOC to the Company pursuant to the NVOC Asset Purchase Agreement, or (iii) by OCC to the Company pursuant to the OCC Asset Purchase Agreement, is valid and in full force and effect and are enforceable according to its terms. Except in accordance with their terms except regard to collective bargaining agreements (which is the subject of Section 2.15), each of Seller, the Company, NVOC, or OCC (as applicable) has duly performed all of its material obligations under such Material Contracts to the extent that those obligations to perform have accrued and no material violation of, or material default or breach under, such enforceability Material Contracts by Seller, the Company, NVOC or OCC (ias applicable) may be limited by bankruptcyhas occurred. To the Knowledge of Seller, insolvencythe Company, reorganizationNVOC or OCC (as applicable), moratorium or the other similar laws relating parties to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) any of the Radiancy Disclosure ScheduleMaterial Contracts are not in material default or breach under any such Material Contract nor has Seller, as the Company, NVOC or OCC received notice that with notice or lapse of the date hereof, no Radiancy Group member is time or both such other parties would be in violation or breach in any material respect of or default under any such Material Contract.
(and to PHMD’s Knowledgec) Except for those Material Contracts listed on Schedule 2.10(c), no event Material Contract assigned to the Company pursuant to the Asset Contribution Agreement, assigned by NVOC to the Company pursuant to the NVOC Asset Purchase Agreement or assigned by OCC to the Company pursuant to the OCC Asset Purchase Agreement requires the consent of any other party thereto to effectuate the assignment thereof to the Company or its subsidiaries.
(d) Except as indicated on Schedule 2.10(d), neither Seller nor the Company has occurred which with received written notice of any actual or threatened termination, cancellation, or limitation of, or any amendment, modification, or change to (i) any Material Contract, (ii) the business relationship of Seller or the passage Company with any customer, distributor or related group of time customers or both would constitute a breach distributors whose purchases individually or in the aggregate are material to the operations and financial condition of the Business, (iii) the requirements of any customer or related group of customers of Seller or the Company whose purchases individually or in the aggregate are material to the operations and financial condition of the Business, or (iv) the business relationship of Seller or the Company with any material respect of supplier to the Business, which termination, cancellation, limitation, amendment, modification or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contractchange would have a Material Adverse Effect.
Appears in 1 contract
Sources: LLC Interest Sale and Purchase Agreement (Owens Corning)
Contracts. Except for the Contracts described in Schedule 5.1(s) (i) Section 3.15(a) of the Radiancy Disclosure “Material Contracts”), the Leases, the Employee Plans and the Contracts listed in Schedule sets forth an accurate list of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business 5.1(v), no Vendor is a Party party to or by which any member of bound by, in connection with the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):Purchased Business:
(i) each Contract (other than purchase orders for Inventory) that involves performance of services any distributor, advertising, agency or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000manufacturer’s representative Contract;
(ii) each any continuing Contract (other for the purchase of materials, supplies, equipment or services involving in the case of any such Contract more than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member $15,000 over the life of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000Contract;
(iii) each Lease, rental any Contract that expires or occupancy agreement, license, installment and conditional sale agreement, and may be renewed at the option of any Person other Contract affecting than such Vendor so as to expire more than two years after the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments date of less than $50,000)this Agreement;
(iv) each any trust indenture, mortgage, promissory note, loan agreement or other Contract in respect for the borrowing of Intellectual Property money, letters of credit, any interest rate, commodities or other hedging arrangement (other than licenses for shrinkwrap, clickwrap foreign exchange contracts) entered into in the Ordinary Course or other similar commercially available off-the-shelf software that has not been modified or customized by a third Party for any leasing transaction of the Radiancy Business)type required to be capitalized in accordance with GAAP;
(v) each collective bargaining agreement and other any Contract to or with any labor union or other employee representative for capital expenditures in excess of a group of employees$15,000 in the aggregate;
(vi) each joint ventureany confidentiality, partnershipsecrecy or non-disclosure Contract or any Contract limiting the freedom of such Vendor to engage in the Purchased Business, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group compete with any other Person, solicit any Persons for any purpose, or otherwise contractually limit its right to conduct the Purchased Business;
(vii) any agreement relating Contract pursuant to indebtedness for borrowed money which such Vendor is a lessor of any machinery, equipment, motor vehicles, office furniture, fixtures or extensions of creditother personal property;
(viii) each any Contract containing covenants that restrict with any Person with whom such Vendor does not deal at arm’s length within the business activity of any member meaning of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any PersonTax Act;
(ix) any agreement providing for indemnification by of guarantee, support, indemnification, assumption or endorsement of, or any member similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of the Radiancy Group, any other than indemnification provided to customers or vendors in the Ordinary Course of BusinessPerson;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor in respect of the Radiancy BusinessIntellectual Property owned by, other than at-will arrangements that do not include severance licensed to or “change of control” provisionsused by the Vendors; andor
(xi) each amendmentany Contract made out of the Ordinary Course. The Vendors have performed all of the obligations required to be performed by them and are entitled to all benefits under the Material Contracts and, supplementto the knowledge of the Vendors, are not alleged to be in default of any Material Contract. Each of the Material Contracts is in full force and effect, unamended, and modification there exists no default or event of default or event, occurrence, condition or act (whether oral including the purchase of the Purchased Assets) which, with the giving of notice, the lapse of time or written) the happening of any other event or condition, would become a default or event of default under any Material Contract other than any requirements to obtain the consent to assignment of the other party. True, correct and complete copies of all Material Contracts have been delivered to the Purchaser. With respect to Contracts to which the Vendors are a party in respect connection with the Purchased Business that are not Material Contracts, except for certain acts of default or breach which, in the aggregate, are not material, the Vendors are not in violation or breach, in any respect, of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) terms or conditions of any such Contract, and to the knowledge of the Radiancy Disclosure ScheduleVendors, as of except for certain failures to perform which, in the date hereofaggregate, are not material, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except covenants to the extent that such enforceability (i) may be limited performed by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party party to any such Business Contract in breach in any material respect of or default under such Business ContractContracts have been fully performed.
Appears in 1 contract
Contracts. (ia) Section 3.15(a3.10(a) of the Radiancy Seller Disclosure Schedule Schedules sets forth an accurate as of the date of this Agreement a true and complete list of each of the following Business Contracts (including the Vendor Contracts that are the subject of Section 5.16, assuming such Vendor Contracts become Unbundled by the Closing Date) (other than purchase orders and invoices, and, in each case, other than any Contract that will be used to which any member provide services, assets or products pursuant to the Transaction Documents) (each such Contract set forth or required to be set forth on Section 3.10(a) of the Radiancy Group engaged in Seller Disclosure Schedules, along with the Radiancy Business is LSTA Agreement, a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business ContractsMaterial Contract”):
(i) each any Contract (other than purchase orders for Inventory) that involves performance of services with a Material Customer or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000Material Vendor;
(ii) each any Contract (other than purchase orders with a distributor for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of with an amount or value ACV in excess of fifty thousand Dollars ($25,00050,000) per year;
(iii) each Leaseany joint venture, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold partnership or other interest insimilar agreement involving co-investment, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)profit-sharing or a similar arrangement between the Business with a third party;
(iv) each any Contract containing covenants that would restrict or limit in any material respect the ability of Intellectual Property the Business (or Purchaser or any of its Affiliates after the Closing) to engage in any business or with any Person or in any geographic area (excluding Contracts that (A) are terminable by Seller or its Affiliate(s) part(ies) thereto without cause on no more than ninety (90) days’ prior notice to the other than licenses for shrinkwrap, clickwrap part(ies) thereto or other similar commercially available off-the-shelf software that has not been modified or customized by (B) have a third Party for term expiring within six (6) months after the Radiancy Businessdate hereof);
(v) each collective bargaining agreement and any Contract that grants exclusivity in favor of any other Contract to Person or with grants any labor union right of first refusal, right of first offer or other employee representative of a group of employeessimilar preferential rights;
(vi) each joint venture, partnership, and other any Contract pursuant to which a third party grants a license to any Intellectual Property Rights material to the Business (however named) involving but excluding any Contract for commercially available Software or data that is not material to the Business or a sharing of profits, losses, costsBusiness Product), or liabilities by pursuant to which Seller or its Subsidiaries grants a license to any member material Business Intellectual Property to any third party (other than non-exclusive licenses granted in the ordinary course of the Radiancy Group with any other Personbusiness);
(vii) any agreement Contract relating to indebtedness for borrowed money the acquisition or extensions disposition of creditany business (whether by merger, sale of stock, sale of assets or otherwise) under which, after the Closing, the Business will have a material obligation with respect to an “earn out”, contingent purchase price or similar contingent payment obligation or any other material Liability or that has not been consummated as of the date hereof;
(viii) each to the Knowledge of Seller, any Contract containing covenants that restrict the business activity of evidencing or granting any member Lien (other than a Permitted Lien) on any of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any PersonPurchased Assets;
(ix) any agreement Contract material to the Business providing for a material obligation for the indemnification of any Person by Seller or any member of its Affiliates in respect of the Radiancy GroupBusiness (excluding indemnification of customers, vendors and counterparties to other than indemnification provided to customers or vendors Business Contracts in the Ordinary Course ordinary course of Businessbusiness consistent with past practice);
(x) any employment Contract relating to the resolution, settlement, release or consulting Contract compromise of any actual or threatened Proceeding Primarily Related to the Business with a value greater than one hundred thousand Dollars ($100,000) which is an Assumed Liability or which provides for any Business Employee, or any consultant or contractor of equitable remedy affecting the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoingContract with a Governmental Entity.
(iib) Except as set forth Seller has made available to Purchaser a true and complete copy of each Material Contract in Section 3.15(b) of the Radiancy Disclosure Schedule, effect as of the date hereof, all of the Radiancy Business Contracts are . Each Material Contract is in full force and effect and are is valid, binding and enforceable against the Seller Entity party thereto and, to the Knowledge of Seller, the other parties thereto, in accordance with their terms except its terms, in each case, subject to the extent that such enforceability (i) may be limited by bankruptcyEnforceability Exceptions, insolvencyexcept, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Scheduleeach case, as of has not had and would not reasonably be expected to have, individually or in the date hereofaggregate, no Radiancy Group member is in breach in any material respect of a Business Material Adverse Effect. Neither Seller (or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default underits applicable Subsidiary) any Business Contract nor, to PHMD’s Knowledgethe Knowledge of Seller, is any other Party party to a Material Contract is in material breach or violation of, or material default under, any such Material Contract, except, in each case, as has not had and would not reasonably be expected to have, individually or in the aggregate, a Business Contract in breach in any material respect of or default under such Business ContractMaterial Adverse Effect.
Appears in 1 contract
Contracts. (ia) Section 3.15(aPart 3.10(a) of the Radiancy Disclosure Schedule sets forth an accurate list of the following Contracts to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used in, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):Letter lists each Acquired Company Contract:
(i) each Contract (other than purchase orders which provides for Inventory) that involves performance indemnification of services any director or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000agent;
(ii) each that: (A) is an Acquired Company IP Contract; (B) is a Contract for the acquisition or sale of any material Intellectual Property Right; or (C) is a Contract for the development of any material Intellectual Property Right other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business case of an amount “(A)” any Specified Customer Contract and in the case of clauses “(B)” and “(C)”: (1) any Specified Customer Contract; (2) any Contract that is not material to the business of any Acquired Company; or value in excess (3) any other Acquired Company Contract for the sale or license of $25,000any Acquired Company Product or sale or provision of any Acquired Company Service prior to January 1, 2005;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having aggregate payments of less than $50,000)that is a Specified Customer Contract;
(iv) each Contract in respect (A) creating or establishing any partnership or joint venture or any sharing of Intellectual Property revenues, profits, losses, costs or liabilities (other than licenses including the sharing with any Person of any fees or royalties received by any of the Acquired Companies for shrinkwrapthe licensing of any Acquired Company IP); (B) imposing on an Acquired Company an obligation to provide or grant most favored nation pricing; (C) involving a right of first refusal, clickwrap right of first negotiation or other similar commercially available offright with respect to an Acquired Company, an Acquired Company Product or an Acquired Company Service; or (D) involving exclusive marketing or other exclusive rights, or exclusive or non-the-shelf software that has not been modified exclusive sales, distribution or customized by reseller rights, with respect to a third Party material Acquired Company Product or Acquired Company Service in each case under clauses “(A)” through “(D)” other than: (1) any Specified Customer Contract; (2) any other Acquired Company Contract for the Radiancy Business)sale or license of any Acquired Company Product or sale or provision of any Acquired Company Service prior to January 1, 2005; (3) an Acquired Company IP Contract, or (4) a Contract that is not material to the business of an Acquired Company;
(v) each collective bargaining agreement and imposing any restriction on any of the Acquired Companies: (A) to compete with any other Contract Person; (B) to acquire any product or other asset or any services from any other Person, to sell any product or other asset to or perform any services for any other Person, or to transact business or deal in any other manner with any labor union other Person; or (C) to develop or distribute any technology, in each case under clauses “(A)” through “(C)” other employee representative than: (1) any Specified Customer Contract; (2) any Contract that is not material to the business of a group any Acquired Company, and (3) any other Acquired Company Contract for the sale or license of employeesany Acquired Company Product or sale or provision of any Acquired Company Service prior to January 1, 2005;
(vi) each joint ventureinvolving any loan, partnershipguaranty, and other Contract (however named) involving a sharing pledge, performance or completion bond or surety arrangement in excess of profits, losses, costs, or liabilities by any member of the Radiancy Group with any other PersonEUR 25.000;
(vii) with a sole source supplier of a product or service that is material to the operation of the business of an Acquired Company or pursuant to which any agreement relating Acquired Company is obligated to indebtedness for borrowed money purchase all, or extensions of creditany specific portion or percentage of, its requirements for, or any minimum amount of, any product, good or service that are material to such Acquired Company;
(viii) each Contract containing covenants that restrict the business activity of any member of the Radiancy Group, including, but not limited to, any exclusivity covenants, or limit the freedom of any member of the Radiancy Group to engage in any line of business or to compete with any Person;Related Party; and
(ix) to which any agreement providing for indemnification by Governmental Body is a party or under which any member of the Radiancy GroupGovernmental Body has any rights or obligations, or involving or benefiting any Governmental Body, other than indemnification provided to customers operating licenses or vendors permits, tax registrations and similar Contracts. (Contracts in the Ordinary Course respective categories described in clauses “(i)” through “(xi)” above and all Contracts identified, or required to be identified, in Part 3.10 of Business;the Disclosure Letter are referred to in this Agreement as “Material Contracts.”)
(xb) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) in respect No director of any of the foregoingAcquired Companies has an outstanding right to any compensation, nor the right to participate in the profits of any Acquired Companies, solely in his or her capacity as a director of an Acquired Company.
(c) The Company has delivered to the Purchaser accurate and complete copies of all written Material Contracts identified in Part 3.10(a) of the Disclosure Letter, including all amendments thereto. Each Contract identified in Part 3.10(a) of the Disclosure Letter is, to the Company’s Knowledge, valid and in full force and effect, and, is enforceable by the respective Acquired Company in accordance with its terms, subject to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies.
(d) Except as set forth in Section 3.15(bPart 3.10(d) of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability Letter: (i) may be limited by bankruptcynone of the Acquired Companies has materially violated or breached, insolvencyor committed any material default under, reorganizationany Material Contract, moratorium which remains uncured, and, to the Company’s Knowledge, no other Person has violated or other similar laws relating to creditors’ rights generallybreached, and or committed any default under, any such Material Contract which remains uncured; (ii) is subject to general principles of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMDCompany’s Knowledge, no event has occurred which occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or could reasonably be expected to: (A) result in a violation or breach of any of the passage material provisions of time any Material Contract; (B) give any party to such Material Contract the right to declare a default or both would constitute a exercise any remedy under any such Material Contract; (C) give any party to such contact the right to accelerate the maturity or performance of any such Material Contract; or (D) give any party to such contract the right to cancel, terminate or modify any Material Contract; and (iii) since 31 December 2005, none of the Acquired Companies has received any notice regarding any actual or possible violation or breach in any material respect of of, or default under, any Material Contract by an Acquired Company.
(e) No Acquired Company has received notice of any Business Contract norpending or threatened claims, and to PHMDthe Company’s Knowledge, there is any other Party to no basis for any such Business Contract in breach in material claims, against any material respect of or default Acquired Company under such Business any Material Contract.
(f) Part 3.10(f) of the Disclosure Letter identifies all powers of attorney granted by each of the Acquired Companies and in effect as of the date of this Agreement other than in connection with the prosecution of Registered IP.
(g) Part 3.10(g) of the Disclosure Letter lists the foreign exchange forward or similar Contracts entered into or otherwise committed to be entered into by any Acquired Company.
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Contracts. (ia) Section 3.15(a) of the Radiancy Disclosure Schedule sets forth an 3.12 contains a complete and accurate list of the following Contracts list, --------- and Sellers have delivered to which any member of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used inBuyer true and complete copies, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Contracts”):of:
(i) each Contract (other than purchase orders for Inventory) contract or agreement that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business one or more Acquired Company of an amount or value in excess of $25,000250,000, or purchase orders with an amount or value in excess of $250,000;
(ii) each Contract (other than purchase orders for Inventory) contract or agreement that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business one or more Acquired Company of an amount or value in excess of $25,000250,000 with respect to fixed obligations and $500,000 with respect to purchase orders;
(iii) each Leaselease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract contract or agreement affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property Personal Property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $50,000)50,000 per annum) or Properties;
(iv) each Contract in respect of Intellectual Property (other than licenses for shrinkwrap, clickwrap material licensing agreement or other similar commercially available off-the-shelf software that has not been modified contract or customized by a third Party for the Radiancy Business)agreement with respect to patents, trademarks, copyrights, or other intellectual property;
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Contract contract or agreement (however named) involving a sharing of profits, losses, costs, or liabilities by any member of the Radiancy Group Acquired Company with any other PersonPerson and each agreement with respect to guarantees of the obligations of a third party and agreements to indemnify third parties;
(vi) each agreement containing non-competition or other limitations restricting the conduct of the business of any Acquired Company;
(vii) each agreement between any agreement relating to indebtedness for borrowed money or extensions Acquired Company and any of credittheir respective affiliates;
(viii) each Contract containing covenants that restrict indentures, mortgages, deeds of trust, promissory notes, loan agreements, capital leases, security agreements or other agreements or commitments for the business activity borrowing of any member of the Radiancy Group, including, but not limited to, any exclusivity covenantsmoney, or limit the freedom deferred purchase price of assets, or which otherwise evidence Indebtedness of either Acquired Company or which create an Encumbrance on any member of its assets or the Radiancy Group to engage in any line of business or to compete with any Person;Trust Property; and
(ix) any each other agreement providing for indemnification by any member not of the Radiancy Grouptype referred to above that is otherwise material to the Acquired Companies, other than indemnification provided to customers or vendors in contracts with individual truckers (none of which represents more than ten percent (10%) of the Ordinary Course total truck units of Business;CATS).
(xb) Each Acquired Company has in all material respects performed all of its obligations required to be performed by it to the date hereof, and is not in default or alleged to be in default in any employment material respect, under any agreement listed on Schedule 3.12, and there exists no event, condition or consulting Contract with any Business Employeeoccurrence which, after notice or any consultant lapse of time or contractor both, would constitute such a default. To the knowledge of the Radiancy BusinessSellers, no other than at-will arrangements that do not include severance or “change of control” provisions; and
(xi) each amendment, supplement, and modification (whether oral or written) party to any such agreement is in default in any respect of any of the foregoing.
(ii) Except as set forth in Section 3.15(b) its obligations thereunder. Each of the Radiancy Disclosure Schedule, as of the date hereof, all of the Radiancy Business Contracts are agreements listed on Schedule 3.12 is valid and in full force and effect and are enforceable against the parties thereto in accordance with their terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equityrespective terms.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure Schedule, as of the date hereof, no Radiancy Group member is in breach in any material respect of or default under (and to PHMD’s Knowledge, no event has occurred which with notice or the passage of time or both would constitute a breach in any material respect of or default under) any Business Contract nor, to PHMD’s Knowledge, is any other Party to any such Business Contract in breach in any material respect of or default under such Business Contract.
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Sources: Purchase Agreement (Commercial Aggregates Transportation & Sales LLC)
Contracts. (ia) Section 3.15(a) 3.12 of the Radiancy Disclosure Schedule Schedules sets forth an accurate list a true and correct list, as of the date hereof, of the following Contracts to which any member Transferred Entity is a party to or bound by, excluding any open purchase or sales orders entered into in the ordinary course of business, any Intercompany Agreements, any Real Property Leases and any Benefit Plan (such Contracts required to be disclosed on Section 3.12 of the Radiancy Group engaged in the Radiancy Business is a Party or by which any member of the Radiancy Group is bound that is primarily used inDisclosure Schedules, or otherwise necessary for, the operation of the Radiancy Business (collectively, the “Radiancy Business Material Contracts”):
(i) each any Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000with a Material Customer;
(ii) each any Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any member of the Radiancy Group engaged in the Radiancy Business of an amount or value in excess of $25,000with a Material Supplier;
(iii) each Leaseany Contract containing any future capital expenditure obligations (including any series of related expenditures) of the Business in excess of [***];
(iv) any Contract that is an equity joint venture, rental strategic alliance, minority equity investment, partnership or occupancy agreementother similar agreement or that is a Contract concerning the management of a Person that is not an individual between a Transferred Entity and a third party;
(v) any Contract pursuant to which (A) a Transferred Entity (or, licensewith respect to the Business, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, Sellers or any leasehold of their Affiliates) licenses from a third party Intellectual Property Rights material to the Business (other than any generally commercially available software or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having software-as-a-service Contracts that involve aggregate payments of less than $50,000[***] per annum and licenses to Intellectual Property Rights which are incidental to the primary purpose of the Contract);
, (ivB) each Contract in a Transferred Entity (or, with respect to the Business, Sellers or any of their Affiliates) licenses to a third party any material Business Owned Intellectual Property (other than licenses for shrinkwrapto Intellectual Property Rights which are incidental to the primary purpose of the Contract and non-exclusive licenses granted in the ordinary course of business), clickwrap (C) any Intellectual Property material to the Business is acquired, divested or developed (other similar commercially available offthan Contracts with employees, contractors, or consultants entered in the ordinary course of business), or (D) a Transferred Entity (or, with respect to the Business, Sellers or any of their Affiliates) is a party or is otherwise bound arising out of or resolving any dispute related to Intellectual Property Rights that relate to the Business, such as consent-theto-shelf software that has not been modified use, covenant-not-to-sue, coexistence, concurrent use, settlement agreements, or customized by a third Party otherwise materially affecting the ability to use or enforce any material Business Owned Intellectual Property (for the Radiancy Businessavoidance of doubt, other than non-exclusive licenses granted in the ordinary course of business);
(v) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other any Contract (however named) involving a sharing of profits, losses, costsrelating to or evidencing Indebtedness of, or liabilities by commitments to provide any member Indebtedness to, the Transferred Entities in excess of [***] in the aggregate with respect to which a Transferred Entity is an obligor or guarantor, or granting a Lien on the assets or equity interests of the Radiancy Group with Transferred Entities, other than any other PersonIndebtedness to be repaid or extinguished at the Closing pursuant to a Payoff Letter or Guaranty and Lien Releases;
(vii) any agreement Contract (A) relating to indebtedness for borrowed money the acquisition or extensions disposition of, or any investment in, any business, corporation, partnership, joint venture or other business (whether by merger, sale of creditstock, sale of assets or otherwise), or (B) under which, after Closing, a Transferred Entity will have an outstanding or future obligation with respect to an “earn out,” deferred purchase price contingent purchase price or similar contingent payment obligation;
(viii) each any Contract containing covenants that restrict the business activity (A) prohibits a Transferred Entity from competing in a particular geographic area or contains exclusivity provisions during any time period; (B) contains “most favored nation” pricing terms or other preferential pricing terms or grants any right of any member first offer, right of the Radiancy Groupfirst refusal; or (C) contains minimum purchase, including, but not limited to, any exclusivity covenants, “take or limit the freedom of any member of the Radiancy Group to engage in any line of business pay” or to compete with any Person“requirements” terms;
(ix) any Contract that is a settlement, conciliation or similar agreement providing for indemnification by with any member Governmental Entity or pursuant to which any of the Radiancy Group, other than indemnification provided to customers or vendors in Transferred Entities will have any material outstanding obligation after the Ordinary Course date of Businessthis Agreement;
(x) any employment or consulting Contract with any Business Employee, or any consultant or contractor of the Radiancy Business, other than at-will arrangements that do not include severance or “change of control” provisions; andCollective Bargaining Agreement;
(xi) any that Contract that creates a Lien, other than a Permitted Lien, on the equity interests of any Transferred Entity or the assets of the Business;
(xii) any material Shared Contract involving (A) expected payments to the Business, or relating to services provided by the Business or (B) expected payments from the Business, or relating to services provided to the Business, in each amendmentcase, supplementother than those contemplated in the Transition Services Agreement;
(xiii) any Contract between a Transferred Entity, on the one hand, and modification a Seller or any Affiliate of a Seller, on the other hand;
(whether oral or writtenxiv) in respect of any of the foregoingmaterial Shared Contract; or
(xv) any Government Contract.
(iib) Except as set forth Other than expirations or non-renewals following the date hereof in Section 3.15(b) accordance with the terms of the Radiancy Disclosure Scheduleapplicable Material Contract, as of the date hereof, all of the Radiancy Business Contracts are each Material Contract is in full force and effect and are enforceable in accordance with their its terms except and, to the extent that such enforceability (i) may be limited by bankruptcyKnowledge of Sellers, insolvencyis valid, reorganizationbinding and enforceable against the parties thereto in accordance with its terms, moratorium or other similar laws relating to creditors’ rights generallyin each case, and (ii) is subject to general principles the General Enforceability Exceptions. No Transferred Entity nor, to the Knowledge of equity.
(iii) Except as set forth in Section 3.15(c) of the Radiancy Disclosure ScheduleSellers, as of the date hereofany other party to a Material Contract, no Radiancy Group member is in material breach in any material respect of or violation of, or default under (under, any Material Contract and to PHMD’s Knowledge, no event has occurred which that with or without notice or the passage lapse of time or both would constitute a material breach in any material respect of or default under) any Business Contract (whether by lapse of time or notice or both). No Transferred Entity nor, to PHMD’s Knowledgethe Knowledge of Sellers, is any other Party party thereto, has received written notice of any non-renewal or intent to terminate or let lapse any such Business Contract in breach in any Material Contract, except as would not have be material respect to the Business, taken as a whole.
(c) Prior to the execution of or default under such Business this Agreement, Sellers have made available to Purchaser true and correct copies of each Material Contract.
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