Specified Contracts. (a) Except as would not have a Company Material Adverse Effect or as specified in Section 3.18 of the Company Disclosure Schedule, (i) each Specified Contract is a legal, valid and binding obligation of the Company or a Subsidiary, as applicable, in full force and effect and enforceable against the Company or a Subsidiary in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Law relating to fraudulent transfers), reorganization, moratorium or similar Law affecting creditors' rights generally and subject to the effect of general principles of equity, (ii) to the knowledge of the Company, each Specified Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Law relating to fraudulent transfers), reorganization, moratorium or similar Law affecting creditors' rights generally and subject to the effect of general principles of equity, (iii) neither the Company nor any of its Subsidiaries is and, to the Company's knowledge, no counterparty is, in breach or violation of, or in default under, any Specified Contract, (iv) none of the Company or any of the Subsidiaries has received any written claim of default under any Specified Contract and (v) to the Company's knowledge, no event has occurred that would result in a breach or violation of, or a default under, any Specified Contract (in each case, with or without notice or lapse of time or both). (b) For purposes of this Agreement, the term "SPECIFIED CONTRACT" means any of the following Contracts (together with all exhibits and schedules thereto) to which the Company or any Subsidiary is a party:
Appears in 3 contracts
Samples: Merger Agreement (Morgan Stanley), Merger Agreement (Morgan Stanley), Merger Agreement (Morgan Stanley)
Specified Contracts. (a) Except as would not have a Company Material Adverse Effect or as specified in Section 3.18 of the Company Disclosure Schedule, (i) each Specified Contract is a legal, valid and binding obligation of the Company or a Subsidiary, as applicable, in full force and effect and enforceable against the Company or a Subsidiary in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Law relating to fraudulent transfers), reorganization, moratorium or similar Law affecting creditors' ’ rights generally and subject to the effect of general principles of equity, (ii) to the knowledge of the Company, each Specified Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Law relating to fraudulent transfers), reorganization, moratorium or similar Law affecting creditors' ’ rights generally and subject to the effect of general principles of equity, (iii) neither the Company nor any of its Subsidiaries is and, to the Company's ’s knowledge, no counterparty is, in breach or violation of, or in default under, any Specified Contract, (iv) none of the Company or any of the Subsidiaries has received any written claim of default under any Specified Contract and (v) to the Company's ’s knowledge, no event has occurred that would result in a breach or violation of, or a default under, any Specified Contract (in each case, with or without notice or lapse of time or both).
(b) For purposes of this Agreement, the term "SPECIFIED CONTRACT" “Specified Contract” means any of the following Contracts (together with all exhibits and schedules thereto) to which the Company or any Subsidiary is a party:
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Transmontaigne Inc), Agreement and Plan of Merger (Transmontaigne Inc)
Specified Contracts. (a) Except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect or as specified in Section 3.18 of the Company Disclosure ScheduleEffect, (i) each Specified Contract and Government Contract is a legal, valid and binding obligation of the Company or a Company Subsidiary, as applicable, and, to the Company’s knowledge, each counterparty thereto, and is in full force and effect and enforceable against the Company or a Subsidiary in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Law relating to fraudulent transfers), reorganization, moratorium or similar Law affecting creditors' rights generally and subject to the effect of general principles of equity, (ii) the Company and the Company Subsidiaries have performed and complied with all obligations required to the knowledge of the Company, be performed or complied with by them under each Specified Contract and Government Contract. There is a legalno breach, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Law relating to fraudulent transfers), reorganization, moratorium violation or similar Law affecting creditors' rights generally and subject to the effect of general principles of equity, (iii) neither the Company nor any of its Subsidiaries is and, to the Company's knowledge, no counterparty is, in breach or violation of, or in default under, under any Specified Contract, (iv) none of Contract and Government Contract by the Company or any of the Company Subsidiaries has received any written claim of default under any Specified Contract and (v) or, to the Company's ’s knowledge, by any counterparty, and no event has occurred that would result in a breach or violation of, or a default under, any Specified Contract (in each case, with or without notice or the lapse of time or both)the giving of notice or both would constitute a breach, violation or default thereunder by the Company or any of the Company Subsidiaries, or, to the Company’s knowledge, by any counterparty, except which would not, or would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect. For purposes of this Section 3.17(a) and Section 3.17(d) below, Specified Contracts will be deemed to include any Contract entered into after the date hereof that would have been a Specified Contract had it been in effect as of or prior to the date hereof.
(b) For purposes of this Agreement, the term "SPECIFIED CONTRACT" “Specified Contract” means any of the following Contracts (together with all exhibits exhibits, schedules and schedules amendments thereto) to which the Company or any Company Subsidiary is a party:
(i) any limited liability company agreement, joint venture or other similar agreement or arrangement with respect to any material business of the Company and the Company Subsidiaries, taken as a whole, other than any such limited liability company, partnership or joint venture that is a wholly-owned Company Subsidiary;
(ii) any Contract or Contracts relating to or evidencing Indebtedness (A) in an amount in excess of $500,000, individually or in the aggregate, other than equipment leases entered into in the ordinary course of business that do not exceed $1,000,000 in the aggregate or (B) any Indebtedness in excess of $50,000 or any secured Indebtedness which, in each case, cannot be prepaid at Closing without penalty, premium or notice;
(iii) any Contract filed as an exhibit to the Company’s Form 10-K/A pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company in a Current Report on Form 8-K, other than Plans disclosed in Section 3.11(a) of the Company Disclosure Letter;
(iv) any Contract that prohibits (or purports to prohibit) the Company or the Company Subsidiaries or any Affiliate of the Company (A) from materially competing in any line of business, (B) competing with any Person or operate in any location or (C) from soliciting of the customers or employees of any Person;
(v) any Contract that (A) contains most favored customer pricing provisions with any third party (other than Contracts entered into in the ordinary course of business consistent with past practice) or (B) grants any exclusive rights, rights of first refusal, rights of first negotiation or similar rights to any Person, in the case of each of (A) and (B) in a manner which is material to the business of the Company and the Company Subsidiaries, taken as a whole;
(vi) any Contract not yet consummated for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of any Person for aggregate consideration under such Contract in excess of $1,000,000 individually, or $5,000,000 in the aggregate;
(vii) any Contract of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act between or among the Company or a Company Subsidiary, on the one hand, and any of their respective Affiliates (other than the Company or any Company Subsidiary), on the other hand, that involves amounts of more than $100,000;
(viii) any acquisition Contract pursuant to which the Company or any of the Company Subsidiaries has or may have continuing indemnification, “earn-out” or contingent payment obligations, whether or not disputed, that, individually or in the aggregate, could result in payments in excess of $500,000;
(ix) any Contract that, individually or in the aggregate, would, or would reasonably be expected to, prevent or materially delay the Company’s ability to consummate the Merger or the Other Transactions;
(x) any Contract that contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary would be required to purchase or sell, as applicable, any ownership interests of any Person for an aggregate consideration under such Contract in excess of $1,000,000; or
(xi) any Contracts containing minimum purchase conditions in excess of $1,000,000 or requirements or other terms that materially restrict or limit the purchasing relationships of the Company or the Company Subsidiaries, or any customer, licensee or lessee thereof.
(c) A true and complete list of the Specified Contracts (other than Contracts relating to Intellectual Property) referred to in clause (b) above is set forth in Section 3.17(c) of the Company Disclosure Letter. The Company has made available to Parent, as of the date hereof, true and correct copies of each Specified Contract.
(d) With respect to each Contract, bid or proposal between the Company or any of the Company Subsidiaries and any (i) Governmental Authority, including any facilities contract for the use of government-owned facilities or (ii) third party relating to a Contract with any Governmental Authority (each a “Government Contract”), (A) the Company and each of the Company Subsidiaries have complied with all terms and conditions of such Government Contract, including all clauses, provisions and requirements incorporated expressly by reference, or by operation of law therein; (B) the Company and each of the Company Subsidiaries have complied with all requirements of all applicable Laws, or agreements pertaining to such Government Contract, including where applicable the “Cost Accounting Standards” disclosure statement of the Company or such Company Subsidiary; (C) all representations and certifications executed, acknowledged or set forth in or pertaining to such Government Contract were complete and correct as of their effective dates and the Company and the Company Subsidiaries have complied with all such representations and certifications; (D) neither the United States government nor any prime contractor, subcontractor, vendor or other Person who is a party to a Government Contract has notified the Company or any of the Company Subsidiaries that the Company or any of the Company Subsidiaries has breached or violated any Laws, certification, representation, clause, provision or requirement pertaining to such Government Contract; (E) neither the Company nor any of the Company Subsidiaries has received any notice of termination for convenience, notice of termination for default, cure notice, show cause or notice pertaining to such Government Contract; (F) no cost incurred by the Company or any of the Company Subsidiaries pertaining to such Government Contract has been questioned or challenged, is the subject of any audit (other than routine cost incurred audits) or investigation or has been disallowed by any Governmental Authority; and (G) no payments due to the Company or any of the Company Subsidiaries pertaining to such Government Contract have been withheld or set off, nor has any claim been made to withhold or set off money, and the Company and the Company Subsidiaries are entitled to all progress or other payments received with respect thereto, except for any such failure, noncompliance, inaccuracy, breach, violation, termination, withholding, cost, investigation, disallowance or payment or other action contemplated by clauses (A) through (G) above that would not, or would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.
(e) To the Company’s knowledge, neither the Company nor any of the Company Subsidiaries or any of their respective directors, officers, employees, consultants or agents is or since July 1, 2004 has been under (i) any civil or criminal investigation or indictment by any Governmental Authority or (ii) material administrative investigation or material audit by any Governmental Authority, in either case with respect to any alleged improper act or omission arising under or relating to any Government Contract.
(f) There exist (i) no outstanding claims against the Company or any of the Company Subsidiaries, either by any Governmental Authority or by any prime contractor, subcontractor or vendor or other Person who is a party to a Government Contract, arising under or relating to any Government Contract, and (ii) no disputes between the Company or any of the Company Subsidiaries and the United States government under the Contract Disputes Act, as amended, or any other federal statute, or between the Company or any of the Company Subsidiaries and any prime contractor, subcontractor or vendor that is party to a Government Contract arising under or relating to any Government Contract which would or would reasonably be expected to, in the case of (i) or (ii), individually or in the aggregate, have a Company Material Adverse Effect. To the Company’s knowledge, neither the Company nor any of the Company Subsidiaries has any Liability in respect of any pending claim against any prime contractor, subcontractor or vendor arising under or relating to any Government Contract that would or would reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.
(g) Since July 1, 2004, neither the Company nor any of the Company Subsidiaries has been determined not to be a responsible party or been debarred or suspended from participation in the award of contracts with the United States government or any other Governmental Authority (excluding, for this purpose, ineligibility to bid on certain contracts due to generally applicable bidding requirements). To the Company’s knowledge, there exist no facts or circumstances that would warrant the institution of suspension or debarment proceedings or the finding of non-responsibility or ineligibility on the part of the Company, any of the Company Subsidiaries or any of their respective directors, officers or employees which would or would reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Aeroflex Inc)
Specified Contracts. (a) Except as would not have a Company Material Adverse Effect or as specified disclosed in Section 3.18 3.17(a) of the Company Disclosure Schedule, Statement (i) each Specified Contract is a legal, valid and binding obligation of the Company or a Subsidiary, as applicable, in full force and effect and enforceable against the Company or a Subsidiary in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Law Laws relating to fraudulent transfers), reorganization, moratorium or similar Law Laws affecting creditors' ’ rights generally and subject to the effect of general principles of equity, (ii) to the knowledge of the Company, each Specified Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Law relating to fraudulent transfers), reorganization, moratorium or similar Law affecting creditors' rights generally and subject to the effect of general principles of equity, (iii) neither the Company nor any of its Subsidiaries is and, to the Company's ’s knowledge, no counterparty is, in breach or violation of, or in default under, any Specified ContractContract (which breach, violation or default is not capable of being cured promptly without penalty), (iv) none of the Company or any of the Subsidiaries has received any written claim of default under any Specified Contract (which default is not capable of being cured promptly without penalty), or any written notice of an intention to, and to the knowledge of the Company, no other party to a Specified Contract intends to, terminate, not renew, stop work under or challenge the validity or enforceability of any Specified Contract (including as a result of the execution and performance of this Agreement) and (v) to the Company's ’s knowledge, no event has occurred that which would result in a breach or violation of, or a default under, any Specified Contract (in each case, with or without notice or lapse of time or both).
(b) For purposes of this Agreement, the term "SPECIFIED CONTRACT" “Specified Contract” means any of the following Contracts (together with all exhibits and schedules thereto) to which the Company or any Subsidiary is a partyparty or by which the Company or any Subsidiary or any of their respective properties or assets are bound or affected as of the date hereof:
Appears in 1 contract
Samples: Agreement and Plan of Merger (DRS Technologies Inc)
Specified Contracts. (a) Except as would not have a Company Material Adverse Effect or as specified disclosed in Section 3.18 3.17(a) of the Company Disclosure Schedule, Statement (i) each Specified Contract is a legal, valid and binding obligation of the Company or a Subsidiary, as applicable, in full force and effect and enforceable against the Company or a Subsidiary in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Law Laws relating to fraudulent transfers), reorganization, moratorium or similar Law Laws affecting creditors' rights generally and subject to the effect of general principles of equity, (ii) to the knowledge of the Company, each Specified Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Law relating to fraudulent transfers), reorganization, moratorium or similar Law affecting creditors' rights generally and subject to the effect of general principles of equity, (iii) neither the Company nor any of its Subsidiaries is and, to the Company's knowledge, no counterparty is, in breach or violation of, or in default under, any Specified ContractContract (which breach, violation or default is not capable of being cured promptly without penalty), (iv) none of the Company or any of the Subsidiaries has received any written claim of default under any Specified Contract (which default is not capable of being cured promptly without penalty), or any written notice of an intention to, and to the knowledge of the Company, no other party to a Specified Contract intends to, terminate, not renew, stop work under or challenge the validity or enforceability of any Specified Contract (including as a result of the execution and performance of this Agreement) and (v) to the Company's knowledge, no event has occurred that which would result in a breach or violation of, or a default under, any Specified Contract (in each case, with or without notice or lapse of time or both).
(b) For purposes of this Agreement, the term "SPECIFIED CONTRACTSpecified Contract" means any of the following Contracts (together with all exhibits and schedules thereto) to which the Company or any Subsidiary is a partyparty or by which the Company or any Subsidiary or any of their respective properties or assets are bound or affected as of the date hereof:
Appears in 1 contract
Samples: Agreement and Plan of Merger (DRS Technologies Inc)
Specified Contracts. (a) Except as would not have a Company Material Adverse Effect or as specified disclosed in Section 3.18 3.17(a) of the Company Disclosure Schedule, Statement (i) each Specified Contract is a legal, valid and binding obligation of the Company or a Subsidiary, as applicable, in full force and effect and enforceable against the Company or a Subsidiary in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Law Laws relating to fraudulent transfers), reorganization, moratorium or similar Law Laws affecting creditors' rights generally and subject to the effect of general principles of equity, (ii) to the knowledge of the Company, each Specified Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Law relating to fraudulent transfers), reorganization, moratorium or similar Law affecting creditors' rights generally and subject to the effect of general principles of equity, (iii) neither the Company nor any of its Subsidiaries is and, to the Company's knowledge, no counterparty is, in breach or violation of, or in default under, any Specified ContractContract (which breach, violation or default is not capable of being cured promptly without penalty), (iv) none of the Company or any of the Subsidiaries has received any written claim of default under any Specified Contract (which default is not capable of being cured promptly without penalty), or any written notice of an intention to, and to the knowledge of the Company, no other party to a Specified Contract intends to, terminate, not renew, stop work under or challenge the validity or enforceability of any Specified Contract (including as a result of the execution and performance of this Agreement) and (v) to the Company's knowledge, no event has occurred that which would result in a breach or violation of, or a default under, any Specified Contract (in each case, with or without notice or lapse of time or both).
(b) For purposes of this Agreement, the term "SPECIFIED CONTRACTSpecified --------- Contract" means any of the following Contracts (together with all exhibits -------- and schedules thereto) to which the Company or any Subsidiary is a partyparty or by which the Company or any Subsidiary or any of their respective properties or assets are bound or affected as of the date hereof:
(i) any limited liability company agreement, joint venture or other similar agreement or arrangement with respect to any material business of the Company or any of its Subsidiaries;
(ii) any Contract relating to or evidencing Indebtedness;
(iii) any Contract filed or required to be filed as an exhibit to the Company's Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed or required to be disclosed by the Company in a Current Report on Form 8-K or other SEC filing, other than Plans disclosed in Section 3.11(a);
(iv) any Contract that purports to limit the right of the Company or the Subsidiaries or any Affiliate of the Company (A) to engage or compete in any line of business or (B) to compete with any Person or operate in any location;
(v) any Contract that (A) contains most favored customer pricing provisions or (B) grants any exclusive rights, rights of first refusal, rights of first negotiation or similar rights to any Person;
(vi) any Contract for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of any Person for aggregate consideration under such Contract in excess of $1,000,000;
(vii) any Contract between or among the Company or a Subsidiary, on the one hand, and any of their respective Affiliates (other than the Company or any Subsidiary), on the other hand;
(viii) any acquisition Contract pursuant to which the Company or any of its Subsidiaries has continuing indemnification, "earn-out" or other contingent payment obligations;
(ix) any 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;
(x) any Contract that contains a put, call, right of first refusal or similar right pursuant to which the Company or any Subsidiary would be required to purchase or sell, as applicable, any ownership interests of any Person;
(xi) any Contract that involves performance of services or delivery of goods supplies, products and/or materials or other personal property by the Company or any Subsidiary after the date hereof which is believed by management of the Company to be significant with respect to the Company and its Subsidiaries taken as a whole;
(xii) any Contract which involves receipt of services or purchase of goods, supplies, products and/or materials or other personal property by the Company or any Subsidiary after the date hereof which is believed by management of the Company to be significant with respect to the Company and its Subsidiaries taken as a whole;
(xiii) any 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 real or personal property and involving aggregate payments in excess of $1,000,000 per annum;
(xiv) any foreign sales agent agreement;
(xv) any Contract expressly requiring capital expenditures after the date hereof in an amount in excess of $500,000; and
(xvi) any Contract entered into during the current fiscal year relating to the settlement of any litigation, suit, proceeding, action, investigation, claim, judgment, award, order or decree which involves liability of the Company or any Subsidiary.
Appears in 1 contract
Specified Contracts. (a) Except as has not had, and would not have reasonably be expected to have, a Company Material Adverse Effect or as specified in Section 3.18 of the Company Disclosure ScheduleEffect, (i) each Specified Contract is a legal, valid and binding obligation of the Company or a Subsidiary, as applicable, in full force and effect and enforceable against the Company or a Subsidiary in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Law laws relating to fraudulent transfers), reorganization, moratorium or similar Law laws affecting creditors' ’ rights generally and subject to the effect of general principles of equity, (ii) to the knowledge of the Company, each Specified Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Law laws relating to fraudulent transfers), reorganization, moratorium or similar Law laws affecting creditors' ’ rights generally and subject to the effect of general principles of equity, (iii) neither the Company nor any of its Subsidiaries is and, to the Company's ’s knowledge, no counterparty is, in breach or violation of, or in default under, any Specified Contract, (iv) none of the Company or any of the Subsidiaries has received any written claim of default under any Specified Contract or any written notice of an intention to terminate, not renew or challenge the validity or enforceability of any Specified Contract and (v) to the Company's ’s knowledge, no event has occurred that which would result in a breach or violation of, or a default under, any Specified Contract (in each case, with or without notice or lapse of time or both).
(b) For purposes of this Agreement, the term "SPECIFIED CONTRACT" “Specified Contract” means any of the following Contracts (together with all exhibits and schedules thereto) to which the Company or any Subsidiary is a party:
Appears in 1 contract
Specified Contracts. (a) Except as would not have a Company Material Adverse Effect or as specified in Section 3.18 of the Company Disclosure Schedule, (i) each Specified Contract is a legal, valid and binding obligation of the Company or a Subsidiary, as applicable, in full force and effect and enforceable against the Company or a Subsidiary in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Law relating to fraudulent transfers), reorganization, moratorium or similar Law affecting creditors' rights generally and subject to the effect of general principles of equity, (ii) to the knowledge of the Company, each Specified Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Law relating to fraudulent transfers), reorganization, moratorium or similar Law affecting creditors' rights generally and subject to the effect of general principles of equity, (iii) neither the Company nor any of its Subsidiaries is and, to the Company's knowledge, no counterparty is, in breach or violation of, or in default under, any Specified Contract, (iv) none of the Company or any of the Subsidiaries has received any written claim of default under any Specified Contract and (v) to the Company's knowledge, no event has occurred that would result in a breach or violation of, or a default under, any Specified Contract (in each case, with or without notice or lapse of time or both).
(b) For purposes of this Agreement, the term "SPECIFIED CONTRACTSpecified Contract" means any of the following Contracts (together with all exhibits and schedules thereto) to which the Company or any Subsidiary is a party:
(i) any limited liability company agreement, joint venture or other similar agreement or arrangement with respect to any material business of the Company and the Subsidiaries, taken as a whole, other than any such limited liability company, partnership or joint venture that is a Subsidiary;
(ii) any Contract relating to or evidencing Indebtedness in an amount in excess of $5,000,000, other than equipment leases that are treated as operating leases in accordance with GAAP and entered into in the ordinary course of business;
(iii) any Contract filed or required to be filed as an exhibit to the Company's Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed or required to be disclosed by the Company in a Current Report on Form 8-K, other than Plans disclosed in Section 3.11(a);
(iv) any Contract that purports to limit the right of the Company or the Subsidiaries (A) to engage or compete in any line of business or (B) to compete with any Person or operate in any geographic area, in the case of each of (A) and (B), in any respect material to the business of the Company and the Subsidiaries, taken as a whole;
(v) any Contract that (A) contains most favored customer pricing provisions (other than pricing provisions governed by reference to a pricing service or other third-party pricing mechanism) with any third party (other than Contracts terminable by the Company or applicable Subsidiary upon not more than 60 days notice without incurring premium or penalty entered into in the ordinary course of business consistent with past practice) or (B) grants any exclusive rights, rights of first refusal, rights of first negotiation or similar rights to any Person (other than the Company or any of its Subsidiaries);
(vi) any Contract entered into after July 1, 2005 or not yet consummated for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of any Person for an aggregate consideration under such Contract in excess of $10,000,000 individually, or $20,000,000 in the aggregate or any contract for the disposition of the assets of the Company to the MLP;
(vii) any Contract of the type specified in Section 5.01(m) or between or among the Company or a Subsidiary, on the one hand, and any of their respective Affiliates (other than the Company or any Subsidiary), on the other hand, that involves amounts of more than $60,000 (other than contracts or agreements included in Section 3.18(b)(iii));
(viii) any acquisition Contract pursuant to which the Company or any of its Subsidiaries has continuing indemnification (other than environmental remediation and indemnification obligations, which are expressly covered in Section 3.16), "earn-out" or other contingent payment obligations, except for any such earn-out or contingent payment obligations for which the Company has properly accrued a liability on its financial statements referred to in Section 3.07(c) in accordance with GAAP;
(ix) any Contract that, individually or in the aggregate, would, or would reasonably be expected to, prevent or delay beyond the Expiration Date the Company's ability to consummate the transactions contemplated by this Agreement;
(x) any Contract that contains a put, call, right of first refusal or similar right pursuant to which the Company or any Subsidiary would be required to purchase or sell, as applicable, any ownership interests of any Person;
(xi) each Contract in effect on December 31, 2005, with (A) each of the five largest (by anticipated dollar amount in 2006) customers of the Company and its Subsidiaries for terminaling services and (B) each of the five largest (by anticipated dollar amount in 2006) customers of the Company and its Subsidiaries for delivery of refined petroleum products;
(xii) any Contract with any supplier of, or vendor or provider of services to, the Company or any Subsidiary (other than for purchase of product inventory) providing for minimum annual payments from the Company and its Subsidiaries in excess of (A) $500,000, with respect to operating leases (other than real estate leases set forth in Section 3.13 of the Company Disclosure Schedule) and (B) $1,000,000 with respect to other contractual obligations, in each case, that was in effect as of December 31, 2005 and having payments in excess of such amount due in calendar 2006. A true and complete list of the Specified Contracts referred to in subsections (i) through (xii) above is set forth in Section 3.18 of the Company Disclosure Schedule, except for Specified Contracts filed prior to the date hereof as exhibits to SEC Reports. The Company has made available to Parent true and correct copies of each Specified Contract.
Appears in 1 contract
Specified Contracts. (a) Except as has not had, and would not have reasonably be expected to have, a Company Material Adverse Effect or as specified in Section 3.18 of the Company Disclosure ScheduleEffect, (i) each Specified Contract is a legal, valid and binding obligation of the Company or a Subsidiary, as applicable, in full force and effect and enforceable against the Company or a Subsidiary in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Law laws relating to fraudulent transfers), reorganization, moratorium or similar Law laws affecting creditors' rights generally and subject to the effect of general principles of equity, (ii) to the knowledge of the Company, each Specified Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Law laws relating to fraudulent transfers), reorganization, moratorium or similar Law laws affecting creditors' rights generally and subject to the effect of general principles of equity, (iii) neither the Company nor any of its Subsidiaries is and, to the Company's knowledge, no counterparty is, in breach or violation of, or in default under, any Specified Contract, (iv) none of the Company or any of the Subsidiaries has received any written claim of default under any Specified Contract or any written notice of an intention to terminate, not renew or challenge the validity or enforceability of any Specified Contract and (v) to the Company's knowledge, no event has occurred that which would result in a breach or violation of, or a default under, any Specified Contract (in each case, with or without notice or lapse of time or both).
(b) For purposes of this Agreement, the term "SPECIFIED CONTRACTSpecified Contract" means any of the following Contracts (together with all exhibits and schedules thereto) to which the Company or any Subsidiary is a party:
Appears in 1 contract
Samples: Merger Agreement (Stone William C)
Specified Contracts. (a) Except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect or as specified in Section 3.18 of the Company Disclosure ScheduleEffect, (i) each Specified Contract and Government Contract is a legal, valid and binding obligation of the Company or a Company Subsidiary, as applicable, in full force and effect and enforceable against the Company or a Subsidiary in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Law relating to fraudulent transfers), reorganization, moratorium or similar Law affecting creditors' rights generally and subject to the effect of general principles of equity, (ii) to the knowledge of the Company, each Specified Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Law relating to fraudulent transfers), reorganization, moratorium or similar Law affecting creditors' rights generally and subject to the effect of general principles of equity, (iii) neither the Company nor any of its Subsidiaries is and, to the Company's knowledge, each counterparty thereto, and is in full force and effect and (ii) the Company and the Company Subsidiaries have performed and complied with all obligations required to be performed or complied with by them under each Specified Contract and Government Contract. There is no counterparty isbreach, in breach violation or violation of, or in default under, under any Specified Contract, (iv) none of Contract and Government Contract by the Company or any of the Company Subsidiaries has received any written claim of default under any Specified Contract and (v) or, to the Company's knowledge, by any counterparty, and no event has occurred that would result in a breach or violation of, or a default under, any Specified Contract (in each case, with or without notice or the lapse of time or both)the giving of notice or both would constitute a breach, violation or default thereunder by the Company or any of the Company Subsidiaries, or, to the Company's knowledge, by any counterparty, except which would not, or would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect. For purposes of this Section 3.17(a) and Section 3.17(d) below, Specified Contracts will be deemed to include any Contract entered into after the date hereof that would have been a Specified Contract had it been in effect as of or prior to the date hereof.
(b) For purposes of this Agreement, the term "SPECIFIED CONTRACTSpecified Contract" means any of the following Contracts (together with all exhibits exhibits, schedules and schedules amendments thereto) to which the Company or any Company Subsidiary is a party:
Appears in 1 contract
Samples: Merger Agreement (Aeroflex Inc)
Specified Contracts. (a) Except as has not had, and would not have reasonably be expected to have, a Company Material Adverse Effect or as specified in Section 3.18 of the Company Disclosure ScheduleEffect, (i) each Specified Contract is a legal, valid and binding obligation of the Company or a Subsidiary, as applicable, in full force and effect and enforceable against the Company or a Subsidiary in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Law laws relating to fraudulent transfers), reorganization, moratorium or similar Law laws affecting creditors' ’ rights generally and subject to the effect of general principles of equity, (ii) to the knowledge of the Company, each Specified Contract is a legal, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Law laws relating to fraudulent transfers), reorganization, moratorium moratorium, or similar Law laws affecting creditors' ’ rights generally and subject to the effect of general principles of equity, (iii) neither the Company nor any of its Subsidiaries is and, to the Company's ’s knowledge, no counterparty is, in breach or violation of, or in default under, any Specified Contract, (iv) none of the Company or any of the Subsidiaries has received any written claim of default under any Specified Contract or any written notice of an intention to terminate, not renew or challenge the validity or enforceability of any Specified Contract and (v) and except for the execution, delivery and performance of this Agreement and the transactions contemplated hereby, to the Company's ’s knowledge, no event has occurred that would which will result in a breach or violation of, or a default under, any Specified Contract (in each case, with or without notice or lapse of time or both).
(b) For purposes of this Agreement, the term "SPECIFIED CONTRACT" “Specified Contract” means any of the following Contracts (together with all exhibits and schedules thereto) to which the Company or any Subsidiary is a partyparty as of the date of this Agreement:
Appears in 1 contract
Specified Contracts. (a) Except as would not, or would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect or as specified in Section 3.18 of the Company Disclosure ScheduleEffect, (i) each Specified Contract and Government Contract is a legal, valid and binding obligation of the Company or a Company Subsidiary, as applicable, and, to the Company’s knowledge, each counterparty thereto, and is in full force and effect and enforceable against the Company or a Subsidiary in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Law relating to fraudulent transfers), reorganization, moratorium or similar Law affecting creditors' rights generally and subject to the effect of general principles of equity, (ii) the Company and the Company Subsidiaries have performed and complied with all obligations required to the knowledge of the Company, be performed or complied with by them under each Specified Contract and Government Contract. There is a legalno breach, valid and binding obligation of the counterparty thereto, in full force and effect and enforceable against such counterparty in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Law relating to fraudulent transfers), reorganization, moratorium violation or similar Law affecting creditors' rights generally and subject to the effect of general principles of equity, (iii) neither the Company nor any of its Subsidiaries is and, to the Company's knowledge, no counterparty is, in breach or violation of, or in default under, under any Specified Contract, (iv) none of Contract and Government Contract by the Company or any of the Company Subsidiaries has received any written claim of default under any Specified Contract and (v) or, to the Company's ’s knowledge, by any counterparty, and no event has occurred that would result in a breach or violation of, or a default under, any Specified Contract (in each case, with or without notice or the lapse of time or both)the giving of notice or both would constitute a breach, violation or default thereunder by the Company or any of the Company Subsidiaries, or, to the Company’s knowledge, by any counterparty, except which would not, or would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect. For purposes of this Section 3.17(a) and Section 3.17(d) below, Specified Contracts will be deemed to include any Contract entered into after the date hereof that would have been a Specified Contract had it been in effect as of or prior to the date hereof.
(b) For purposes of this Agreement, the term "SPECIFIED CONTRACT" “Specified Contract“ means any of the following Contracts (together with all exhibits exhibits, schedules and schedules amendments thereto) to which the Company or any Company Subsidiary is a party:
(i) any limited liability company agreement, joint venture or other similar agreement or arrangement with respect to any material business of the Company and the Company Subsidiaries, taken as a whole, other than any such limited liability company, partnership or joint venture that is a wholly-owned Company Subsidiary;
(ii) any Contract or Contracts relating to or evidencing Indebtedness (A) in an amount in excess of $500,000, individually or in the aggregate, other than equipment leases entered into in the ordinary course of business that do not exceed $1,000,000 in the aggregate or (B) any Indebtedness in excess of $50,000 or any secured Indebtedness which, in each case, cannot be prepaid at Closing without penalty, premium or notice;
(iii) any Contract filed as an exhibit to the Company’s Form 10-K/A pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company in a Current Report on Form 8-K, other than Plans disclosed in Section 3.11(a) of the Company Disclosure Letter;
(iv) any Contract that prohibits (or purports to prohibit) the Company or the Company Subsidiaries or any Affiliate of the Company (A) from materially competing in any line of business, (B) competing with any Person or operate in any location or (C) from soliciting of the customers or employees of any Person;
(v) any Contract that (A) contains most favored customer pricing provisions with any third party (other than Contracts entered into in the ordinary course of business consistent with past practice) or (B) grants any exclusive rights, rights of first refusal, rights of first negotiation or similar rights to any Person, in the case of each of (A) and (B) in a manner which is material to the business of the Company and the Company Subsidiaries, taken as a whole;
(vi) any Contract not yet consummated for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of any Person for aggregate consideration under such Contract in excess of $1,000,000 individually, or $5,000,000 in the aggregate;
(vii) any Contract of the type that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act between or among the Company or a Company Subsidiary, on the one hand, and any of their respective Affiliates (other than the Company or any Company Subsidiary), on the other hand, that involves amounts of more than $100,000;
(viii) any acquisition Contract pursuant to which the Company or any of the Company Subsidiaries has or may have continuing indemnification, “earn-out” or contingent payment obligations, whether or not disputed, that, individually or in the aggregate, could result in payments in excess of $500,000;
(ix) any Contract that, individually or in the aggregate, would, or would reasonably be expected to, prevent or materially delay the Company’s ability to consummate the Merger or the Other Transactions;
(x) any Contract that contains a put, call, right of first refusal or similar right pursuant to which the Company or any Company Subsidiary would be required to purchase or sell, as applicable, any ownership interests of any Person for an aggregate consideration under such Contract in excess of $1,000,000; or
(xi) any Contracts containing minimum purchase conditions in excess of $1,000,000 or requirements or other terms that materially restrict or limit the purchasing relationships of the Company or the Company Subsidiaries, or any customer, licensee or lessee thereof.
(c) A true and complete list of the Specified Contracts (other than Contracts relating to Intellectual Property) referred to in clause (b) above is set forth in Section 3.17(c) of the Company Disclosure Letter. The Company has made available to Parent, as of the date hereof, true and correct copies of each Specified Contract.
(d) With respect to each Contract, bid or proposal between the Company or any of the Company Subsidiaries and any (i) Governmental Authority, including any facilities contract for the use of government-owned facilities or (ii) third party relating to a Contract with any Governmental Authority (each a “Government Contract”), (A) the Company and each of the Company Subsidiaries have complied with all terms and conditions of such Government Contract, including all clauses, provisions and requirements incorporated expressly by reference, or by operation of law therein; (B) the Company and each of the Company Subsidiaries have complied with all requirements of all applicable Laws, or agreements pertaining to such Government Contract, including where applicable the “Cost Accounting Standards“ disclosure statement of the Company or such Company Subsidiary; (C) all representations and certifications executed, acknowledged or set forth in or pertaining to such Government Contract were complete and correct as of their effective dates and the Company and the Company Subsidiaries have complied with all such representations and certifications; (D) neither the United States government nor any prime contractor, subcontractor, vendor or other Person who is a party to a Government Contract has notified the Company or any of the Company Subsidiaries that the Company or any of the Company Subsidiaries has breached or violated any Laws, certification, representation, clause, provision or requirement pertaining to such Government Contract; (E) neither the Company nor any of the Company Subsidiaries has received any notice of termination for convenience, notice of termination for default, cure notice, show cause or notice pertaining to such Government Contract; (F) no cost incurred by the Company or any of the Company Subsidiaries pertaining to such Government Contract has been questioned or challenged, is the subject of any audit (other than routine cost incurred audits) or investigation or has been disallowed by any Governmental Authority; and (G) no payments due to the Company or any of the Company Subsidiaries pertaining to such Government Contract have been withheld or set off, nor has any claim been made to withhold or set off money, and the Company and the Company Subsidiaries are entitled to all progress or other payments received with respect thereto, except for any such failure, noncompliance, inaccuracy, breach, violation, termination, withholding, cost, investigation, disallowance or payment or other action contemplated by clauses (A) through (G) above that would not, or would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.
(e) To the Company’s knowledge, neither the Company nor any of the Company Subsidiaries or any of their respective directors, officers, employees, consultants or agents is or since July 1, 2004 has been under (i) any civil or criminal investigation or indictment by any Governmental Authority or (ii) material administrative investigation or material audit by any Governmental Authority, in either case with respect to any alleged improper act or omission arising under or relating to any Government Contract.
(f) There exist (i) no outstanding claims against the Company or any of the Company Subsidiaries, either by any Governmental Authority or by any prime contractor, subcontractor or vendor or other Person who is a party to a Government Contract, arising under or relating to any Government Contract, and (ii) no disputes between the Company or any of the Company Subsidiaries and the United States government under the Contract Disputes Act, as amended, or any other federal statute, or between the Company or any of the Company Subsidiaries and any prime contractor, subcontractor or vendor that is party to a Government Contract arising under or relating to any Government Contract which would or would reasonably be expected to, in the case of (i) or (ii), individually or in the aggregate, have a Company Material Adverse Effect. To the Company’s knowledge, neither the Company nor any of the Company Subsidiaries has any Liability in respect of any pending claim against any prime contractor, subcontractor or vendor arising under or relating to any Government Contract that would or would reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.
(g) Since July 1, 2004, neither the Company nor any of the Company Subsidiaries has been determined not to be a responsible party or been debarred or suspended from participation in the award of contracts with the United States government or any other Governmental Authority (excluding, for this purpose, ineligibility to bid on certain contracts due to generally applicable bidding requirements). To the Company’s knowledge, there exist no facts or circumstances that would warrant the institution of suspension or debarment proceedings or the finding of non-responsibility or ineligibility on the part of the Company, any of the Company Subsidiaries or any of their respective directors, officers or employees which would or would reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
