KNXA » Topics » Section 3.10. Material Contracts .

This excerpt taken from the KNXA 8-K filed Oct 10, 2006.

Section 3.10.          Material Contracts.

(a)           Schedule 3.10 of the Disclosure Schedule sets forth (by corresponding subsection) a true, complete and accurate list of, and BRLLC or BRINC has delivered to Parent and Kenexa Technology true and complete, executed copies (including all amendments and supplements thereto) of the following (“Material Contracts”):

35




 

(i)            all contracts, commitments, agreements and arrangements, between BRLLC, BRINC or any of their respective Subsidiaries, on the one hand, and those thirty (30) clients of the BRLLC, BRINC and their respective Subsidiaries, which accounted for the most revenue of BRLLC, BRINC and their respective Subsidiaries during the 2005 fiscal year (each a “Material Client Contract”);

(ii)           any (x) contract or commitment (other than a Material Client Contract) to which BRINC, BRLLC or any of their respective Subsidiaries is a party that involves payments to BRLLC, BRINC or any of their respective Subsidiaries in excess of $50,000 per fiscal year and (y) contract or commitment to which BRINC, BRLLC or any of their respective Subsidiaries is a party pursuant to which BRLLC, BRINC or any of their respective Subsidiaries receives payments in excess of $50,000 per fiscal year from a Person that provides services to clients of BRLLC, BRINC or any of their respective Subsidiaries;

(iii)          each agreement or arrangement of BRLLC, BRINC or any of their respective Subsidiaries that requires the payment or incurrence of Liabilities by BRLLC, BRINC or any of their respective Subsidiaries, subsequent to the date of this Agreement, of more than $50,000 annually;

(iv)          any contract or commitment to which BRINC, BRLLC or any of their respective Subsidiaries is a party that contains any so-called “most favored nation” provision or similar provision requiring BRLLC, BRINC or any of their respective Subsidiaries to offer to a Person any terms or conditions that are at least as favorable as those offered to one or more other Persons;

(v)           each material acquisition, partnership, joint venture, teaming arrangement or other similar contract, arrangement or agreement that involves the sharing of profits, losses, costs or Liabilities entered into by BRLLC, BRINC or any of their respective Subsidiaries;

(vi)          each agreement, arrangement, contract, commitment or obligation of BRLLC or BRINC or any of their respective Subsidiaries restricting the ability of BRLLC, BRINC or any of their respective Subsidiaries to compete in any line of business, in any jurisdiction or otherwise;

(vii)         each contract between BRLLC, BRINC or any of their respective Subsidiaries with any manager, director, officer, Equityholder or Affiliate of BRLLC, BRINC or any of their respective Subsidiaries, and with any financial advisors, employees or consultants, that requires the payment or incurrence of Liabilities of more than $50,000 annually, under which there are remaining obligations of either party after the Effective Time, including indemnification agreements and any financial advisory, oversight or similar agreement;

(viii)        each power of attorney executed on behalf of BRINC, BRLLC or any of their respective Subsidiaries;

36




 

(ix)           each lease for capital equipment that provides for ongoing payments by BRLLC, BRINC or any of their respective Subsidiaries in excess of $50,000 annually;

(x)            each operating agreement, shareholders agreement, registration rights agreement, voting agreement, voting trust agreement or similar agreements to which BRLLC, BRINC or any of their respective Subsidiaries is a party or, to the Knowledge of BRLLC, to which any securities of BRLLC, BRINC or their respective Subsidiaries are subject;

(xi)           each contract or commitment either (A) requiring any payments in excess of $10,000 or (B) the terms of which provide for an increase in the amount of any payment by at least $10,000, in either case solely because of the consummation of the transactions contemplated by this Agreement or the other Transaction Documents;

(xii)          any indenture, mortgage, promissory note, loan agreement or other agreement or commitment of BRLLC, BRINC or any of their respective Subsidiaries for the borrowing of money, for a line of credit or for any capital leases involving more than $50,000;

(xiii)         each other existing agreement of BRLLC, BRINC or any of their respective Subsidiaries, not otherwise covered by clauses (i) through (xii), the loss of which would reasonably be expected to result in a BRLLC Material Adverse Effect.

(b)           Except as set forth in Schedule 3.10, each Material Contract is in full force and effect and is valid and enforceable by and against BRLLC, BRINC or any of their respective Subsidiaries and, to the Knowledge of BRLLC, each Material Contract is valid and enforceable against the other parties thereto, in each case in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting enforcement of creditors’ rights generally and except insofar as the availability of equitable remedies may be limited by applicable law.  None of BRLLC, BRINC, their respective Subsidiaries and, to the Knowledge of BRLLC, any other party to a Material Contract, is in Default under any Material Contract to which it is a party, nor has it received written notice or, to the Knowledge of BRLLC, oral notice of any Default under any such Material Contract and, to the Knowledge of BRLLC, there does not exist any event, condition or omission that would constitute such a Default (whether by lapse of time or notice or both).

(c)           No counterparty to a Material Client Contract has (i) terminated or notified BRLLC or BRINC in writing of its intention to terminate or cancel, or amend or modify in any manner adverse to BRLLC or BRINC, such Material Client Contract, or (ii) delivered to BRINC, BRLLC or any of their respective Subsidiaries any written notice or, to the Knowledge of BRLLC, other communication, regarding any actual, alleged, possible or potential violation or breach of, or default under, such Material Client Contract by BRLLC or BRINC, or (iii) delivered to BRLLC, BRINC or any of their respective Subsidiaries any written notice of its intent to diminish its relationship with BRLLC, BRINC or any of their respective Subsidiaries, or not renew or continue its existing agreement or relationship with BRLLC, BRINC or any of their respective Subsidiaries on terms at least as favorable to BRLLC, BRINC or any of their respective Subsidiaries, as the case may be, as those currently in effect.

37




 

(d)           For the avoidance of doubt, Material Contracts do not include Real Property Leases, which are covered in Section 3.20(b), contracts in connection with Intellectual Property, which are covered in Section 3.15, or contracts with employees and in connection with Employee Plans, which are covered in Section 3.11.

Wikinvest © 2006, 2007, 2008, 2009, 2010, 2011, 2012. Use of this site is subject to express Terms of Service, Privacy Policy, and Disclaimer. By continuing past this page, you agree to abide by these terms. Any information provided by Wikinvest, including but not limited to company data, competitors, business analysis, market share, sales revenues and other operating metrics, earnings call analysis, conference call transcripts, industry information, or price targets should not be construed as research, trading tips or recommendations, or investment advice and is provided with no warrants as to its accuracy. Stock market data, including US and International equity symbols, stock quotes, share prices, earnings ratios, and other fundamental data is provided by data partners. Stock market quotes delayed at least 15 minutes for NASDAQ, 20 mins for NYSE and AMEX. Market data by Xignite. See data providers for more details. Company names, products, services and branding cited herein may be trademarks or registered trademarks of their respective owners. The use of trademarks or service marks of another is not a representation that the other is affiliated with, sponsors, is sponsored by, endorses, or is endorsed by Wikinvest.
Powered by MediaWiki