Description of Material Contracts. Schedule 4(u) of this Agreement contains a complete and correct list as of the date hereof of certain contracts, which are representative of the contracts entered into by the Company and its customers. Said Schedule shall include copies of all manufacturers rep and/or distributor agreements. Other agreements, contracts and commitments, obligations and understanding are set forth in other Schedules delivered hereunder, of the following types written or oral to which the Company is a party, under which it has any rights or by which it or any of its properties is bound, as of the date hereof: (a) mortgages, indentures, security agreements and other agreements and instruments relating to the borrowing of money or extension of credit; (b) employment and consulting agreements with annual compensation in excess of $50,000; (c) collective bargaining agreements; (d) bonus, profit-sharing, compensation, stock option, pension, retirement, deferred compensation or other plans, agreements, trusts, funds or arrangements for the benefit of employees (whether or not legally binding); (e) sales agency, manufacturer’s representative or distributorship agreements; (f) agreements, orders or commitments for the purchase by the Company of materials, supplies or finished products exceeding $25,000 in the aggregate from any one person; (g) agreements, orders or commitments for the sale by the Company of its products or services exceeding $25,000; (h) agreements or commitments for capital expenditures in excess of $25,000 for any single project (it being warranted that the commitment for all undisclosed contracts for such agreements or commitments does not exceed $25,000 in the aggregate); (i) agreements relating to research; (j) agreements relating to the payment of royalties; (k) brokerage or finder’s agreements; (l) joint venture agreements; and (m) other agreements, contracts and commitments which individually or in the aggregate for any one party involve any expenditure by the Company of more than $25,000. The Company has made available to BBLU copies of all written agreements, contracts, commitments, obligations and undertakings, together with all amendments thereto that are in its possession, listed on the Schedules hereto. All such agreements, contracts, commitments, obligations and undertakings are in full force and effect and, all parties to, or otherwise bound by, such agreements, contracts, commitments, obligations and undertakings have performed all obligations required to be performed by them to date and the Company is not in default and no event, occurrence, condition or act exists which gives rise to (or which with notice or the lapse of time, or both, could result in) a default or right of cancellation, acceleration or loss of contractual benefits under, any such contract, agreement, commitment, obligation or undertaking. There has been no threatened cancellations thereof, and there are no outstanding disputes, other than in the Ordinary Course of Business for a service business serving a large customer base under any such contract, agreement, commitment, obligation or undertaking. To the Stockholders’ best knowledge, no consent of any party is required under any such contract, agreement, commitment, obligation or undertaking, which would make such agreements not binding and in full force and effect as of the Closing Date. Any contracts, agreements, leases or commitments held in the name of any of the Stockholders and set forth in the Schedules hereto shall be assigned to either Newco or the Company prior to the Closing Date. Each contract, lease, instrument and commitment required to be described in the Schedules hereto is, on the date hereof, and will be at the Closing, in full force and effect and is and will constitute a valid and binding obligation of the Company and the respective parties to such agreements, and there is not, under any such contract, lease, instrument or commitment, any existing default by the Company or such other parties or any event that, with notice, lapse of time or both, would constitute a default by the Company or such other parties in respect of which adequate steps have not been taken to cure such default or to prevent a default from occurring or continuing. Any contracts, leases or commitments held in the names of any of the Stockholders and listed on the Schedules shall be assigned either to Newco or the Company prior to the Closing Date. To the Company’s best knowledge, the material suppliers, customers and clients of the Company will continue to supply and purchase from the Company after the Closing, except as may change in the Ordinary Course of Business.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Blue Earth, Inc.), Agreement and Plan of Merger (Blue Earth, Inc.)
Description of Material Contracts. Schedule 4(u) of this Agreement contains a complete and correct list as of the date hereof of certain contracts, which are representative of the contracts entered into by the Company and its customers. Said Schedule shall include copies of all manufacturers rep and/or distributor agreements. Other agreements, contracts and commitments, obligations and understanding understandings which are not set forth in any other Schedules Schedule delivered hereunder, of the following types written or oral to which the Company Corporation is a party, under which it has any rights or by which it or any of its properties is bound, as of the date hereof: (a) mortgages, indentures, security agreements and other agreements and instruments relating to the borrowing of money or extension of credit; (b) employment and consulting agreements with annual compensation in excess of $50,000; (c) collective bargaining agreements; (d) bonus, profit-sharing, compensation, stock option, pension, retirement, deferred compensation or other plans, agreements, trusts, funds or arrangements for the benefit of employees (whether or not legally binding); (e) sales agency, manufacturer’s representative or distributorship agreements; (f) agreements, orders or commitments for the purchase by the Company Corporation of materials, supplies or finished products exceeding $25,000 5,000 in the aggregate from any one person; (g) agreements, orders or commitments for the sale by the Company Corporation of its products or services exceeding $25,0005,000; (h) agreements or commitments for capital expenditures in excess of $25,000 5,000 for any single project (it being warranted that the commitment for all undisclosed contracts for such agreements or commitments does not exceed $25,000 5,000 in the aggregate); (i) agreements relating to research; (j) agreements relating to the payment of royalties; (k) brokerage or finder’s agreements; (l) joint venture agreements; and (m) other agreements, contracts and commitments which individually or in the aggregate for any one party involve any expenditure by the Company Corporation of more than $25,0005,000. The Company Corporation has made available to the Buyer and BBLU copies of all written agreements, contracts, commitments, obligations and undertakings, together with all amendments thereto that are in its possession, listed on the Schedules hereto. All such agreements, contracts, commitments, obligations and undertakings are in full force and effect and, except as disclosed in Schedule 5(j) of this Agreement, all parties to, or otherwise bound by, such agreements, contracts, commitments, obligations and undertakings have performed all obligations required to be performed by them to date and the Company Corporation is not in default and no event, occurrence, condition or act exists which gives rise to (or which with notice or the lapse of time, or both, could result in) a default or right of cancellation, acceleration or loss of contractual benefits under, any such contract, agreement, commitment, obligation or undertaking. There has been no threatened cancellations thereof, and there are no outstanding disputes, other than in the Ordinary Course of Business for a service business serving a large customer base disputes under any such contract, agreement, commitment, obligation or undertaking. To the Stockholders’ best knowledgeExcept as set forth in Schedule 4(b)(i) of this Agreement, no consent of any party is required under any such contract, agreement, commitment, obligation or undertaking, undertaking which would make such agreements not binding and in full force and effect as of the Closing Date. Any contracts, agreements, leases or commitments held in the name of any of the Stockholders and set forth in the Schedules hereto shall be assigned to either Newco the Buyer or the Company Corporation prior to the Closing Date. Each Except as otherwise set forth in Schedule 4(u) of this Agreement, each contract, lease, instrument and commitment required to be described in the Schedules hereto is, on the date hereof, and will be at the Closing, in full force and effect and is and will constitute a valid and binding obligation of the Company Corporation and the respective parties to such agreements, and there is not, under any such contract, lease, instrument or commitment, any existing default by the Company Corporation or such other parties or any event that, with notice, lapse of time or both, would constitute a default by the Company Corporation or such other parties in respect of which adequate steps have not been taken to cure such default or to prevent a default from occurring or continuing. Any contracts, leases or commitments held in the names of any of the Stockholders and listed on the Schedules shall be assigned either to Newco the Buyer or the Company Corporation prior to the Closing Date. To No agreement, contract, commitment, obligation or undertaking listed on the Company’s Schedules hereto which the Corporation is a party or by which it or any of its properties is bound, except as specifically set forth in Schedule 4(u) of this Agreement, contains any provision which materially adversely affects or in the future may (so far as the Stockholders and the Corporation can reasonably now foresee) materially adversely affect the condition, properties, assets, liabilities, business, operations or prospects of the Corporation following the date hereof and upon the Closing Date. Furthermore, to the best of the Stockholders’ knowledge, the material suppliers, customers and clients of the Company Corporation will continue to supply and purchase from the Company Corporation after the Closing, except as may change in the Ordinary Course of Business.
Appears in 1 contract
Description of Material Contracts. Schedule 4(u4(o) of this Agreement contains a complete and correct list as of the date hereof of certain contracts, which are representative of the contracts entered into by the Company and its customers. Said Schedule shall include copies of all manufacturers rep and/or distributor agreements. Other agreements, contracts and commitments, obligations and understanding which are not set forth in other Schedules delivered hereunder, of the following types written or oral to which the Company is a party, under which it has any rights or by which it or any of its properties is bound, as of the date hereof: (a) mortgages, indentures, security agreements and other agreements and instruments relating to the borrowing of money or extension of credit; (b) employment and consulting agreements with annual compensation in excess of $50,000; (c) collective bargaining agreements; (d) bonus, profit-sharing, compensation, stock option, pension, retirement, deferred compensation or other plans, agreements, trusts, funds or arrangements for the benefit of employees (whether or not legally binding); (e) sales agency, manufacturer’s representative or distributorship agreements; (f) agreements, orders or commitments for the purchase by the Company of materials, supplies or finished products exceeding $25,000 in the aggregate from any one person; (g) agreements, orders or commitments for the sale by the Company of its products or services exceeding $25,000; (h) agreements or commitments for capital expenditures in excess of $25,000 for any single project (it being warranted that the commitment for all undisclosed contracts for such agreements or commitments does not exceed $25,000 in the aggregate); (i) agreements relating to research; (j) agreements relating to the payment of royalties; (k) brokerage or finder’s agreements; (l) joint venture agreements; and (m) other agreements, contracts and commitments which individually or in the aggregate for any one party involve any expenditure by the Company of more than $25,000. The Company has made available to the Buyer and BBLU copies of all written agreements, contracts, commitments, obligations and undertakings, together with all amendments thereto that are in its possession, listed on the Schedules hereto. All Except as listed on Schedule 4(o) , all such agreements, contracts, commitments, obligations and undertakings are in full force and effect and, all parties to, or otherwise bound by, such agreements, contracts, commitments, obligations and undertakings have performed all obligations required to be performed by them to date and the Company is not in default and no event, occurrence, condition or act exists which gives rise to (or which with notice or the lapse of time, or both, could result in) a default or right of cancellation, acceleration or loss of contractual benefits under, any such contract, agreement, commitment, obligation or undertaking. There has To Member's best knowledge, there have been no threatened cancellations thereof, and there are no outstanding disputes, other than in the Ordinary Course of Business for a service business serving a large customer base under any such contract, agreement, commitment, obligation or undertaking. To the StockholdersKey Members’ best knowledge, except as set forth on Schedule 4(v), no consent of any party is required under any such contract, agreement, commitment, obligation or undertaking, which would make such agreements not binding and in full force and effect as of the Closing Date. Any contracts, agreements, leases or commitments held in the name of any of the Stockholders Key Members and set forth in the Schedules hereto shall be assigned to either Newco the Buyer or the Company prior to the Closing Date. Each To the Members’ best knowledge, except as set forth on Schedule 4(o), each contract, lease, instrument and commitment required to be described in the Schedules hereto is, on the date hereof, and will be at the Closing, in full force and effect and is and will constitute a valid and binding obligation of the Company and the respective parties to such agreements, and there is not, under any such contract, lease, instrument or commitment, any existing default by the Company or such other parties or any event that, with notice, lapse of time or both, would constitute a default by the Company or such other parties in respect of which adequate steps have not been taken to cure such default or to prevent a default from occurring or continuing. Any contracts, leases or commitments held in the names of any of the Stockholders Members and listed on the Schedules shall be assigned either to Newco the Buyer or the Company prior to the Closing Date. To the Company’s Members’ best knowledge, the material suppliers, customers and clients of the Company will continue to supply and purchase from the Company after the Closing, except as may change in the Ordinary Course of Business.
Appears in 1 contract
