Agreements, Contracts and Commitments. (a) The Company does not have, or is not bound by: (i) any collective bargaining agreement, (ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations, (iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements, (iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization, (v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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, (vi) any fidelity or surety bond or completion bond, (vii) any lease of personal property having a value individually in excess of $25,000, (viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, --------- (ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person, (x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000, (xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business, (xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof, (xiii) any purchase order or contract for the purchase of materials involving $25,000 or more, (xiv) any construction contracts, (xv) any distribution, joint marketing or development agreement, or (xvi) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days. (b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Usweb Corp), Agreement and Plan of Reorganization (Usweb Corp)
Agreements, Contracts and Commitments. As of the date of this Agreement, except for Employee Plans (as defined in Section 3.26 hereof), as contemplated by this Agreement or as set forth on the YieldUP Disclosure Schedule, YieldUP does not have and is not a party to the following agreements (or group of related agreements), whether written or oral (collectively, the "YieldUP Material Contracts"):
(a) The Company does not have, or is not bound by:
(i) any collective bargaining agreement,;
(iib) any agreements or arrangements that contain any unpaid severance pay or post-employment liabilities or obligations,;
(iiic) any bonus, deferred compensation, incentive compensation, pension, profit profit-sharing or retirement plans, or any other employee benefit plans or arrangements,;
(ivd) any employment or consulting agreement, contract contract, or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract contract, or commitment with a firm or other organization,organization not terminable by YieldUP on 30 days' notice without liability except to the extent of applicable local law and/or general principles of wrongful termination law may limit YieldUP's ability to terminate such employees;
(ve) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan right plan, or stock purchase plan, any of the benefits of which will be increased, or the vesting of vested benefits of which will 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,;
(vif) any fidelity or surety bond or completion bond,;
(viig) any lease of personal property having a value individually in excess of $25,000,;
(viiih) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------;
(ixi) any agreement, contract contract, or commitment containing any covenant limiting the freedom of the Company YieldUP to engage in any line of business or to compete with any person,;
(xj) any agreement, contract contract, or commitment relating to capital expenditures and involving future payments obligations in excess of $25,000,;
(xik) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company's business,business or any ownership interest in any corporation, partnership, joint venture, or other business enterprise;
(xiil) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viiih) hereof,;
(xiiim) any purchase order or contract for the purchase of raw materials or acquisition of assets involving $25,000 50,000 or more,;
(xivn) any construction contracts,;
(xvo) any distribution, original equipment manufacturing, sales representation, joint marketing marketing, or development agreement;
(p) any purchase order for the sale of Company products (other than for spare parts) involving $50,000 or more (identified by invoice number, dollar amount and scheduled shipment date); or
(xviq) any other agreement, contract contract, or commitment that which involves $25,000 or more or and is not cancelable without penalty within thirty (30) days.
(b. Schedule 3.14(a) The Company of the YieldUP Disclosure Schedule contains a complete and accurate description of any of the above that constitute oral agreements or oral modifications, amendments or interpretations of oral agreements. Except for such breaches or alleged breaches noted in the YieldUP Disclosure Schedule, YieldUP has not breached, violated or defaulted under, or received notice any claim or threat that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute YieldUP Material Contract in such a breach, violation manner as would permit any other party to cancel or default with terminate the lapse of time, giving of notice same or bothwould permit any other party to seek damages from YieldUP. Each YieldUP Material Contract is in full force and effect and and, except as otherwise disclosed, is not subject to any default thereunder of which YieldUP is aware by any party obligated to the Company YieldUP pursuant thereto. The Company has obtainedExcept as set forth in the YieldUP Disclosure Schedule, or will obtain prior no YieldUP Material Contract of the type referred to the Closing Date, all necessary consents, waivers and approvals in Section 3.14(o) contains any grant of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closingexclusive territory.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Yieldup International Corp), Agreement and Plan of Reorganization (Fsi International Inc)
Agreements, Contracts and Commitments. (a) The Except as set forth on Schedule 2.12(a), the Company does not have, or is not a party to nor is it bound by, and neither Healtheon nor the Acquisition Sub will be bound, by virtue of the transactions contemplated hereby, by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organizationorganization provides services to the Company,
(v) any operating agreement or other agreement relating to the operations of any business organization, including the Company,
(vi) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vivii) any fidelity or surety bond or completion bond,
(viiviii) any lease of personal property having a value individually in excess of $25,00015,000,
(viiiix) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ixx) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(xxi) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00015,000,
(xixii) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xiixiii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiiixiv) any purchase order or contract for the purchase of raw materials involving $25,000 15,000 or more,
(xivxv) any construction contracts,
(xvxvi) any distribution, joint marketing or development agreement,
(xvii) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or
(xvixviii) any other agreement, contract or commitment that involves $25,000 15,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The . Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 2.12(b), the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits be set forth on Schedule 2.12(a) or by which it is bound Schedule 2.11(b) (any such agreement, contract, license contract or commitment, a "ContractCOMPANY CONTRACT"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Company Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.12(b), is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Healtheon Corp), Asset Purchase Agreement (Healtheon Corp)
Agreements, Contracts and Commitments. (a) The Except as set forth on ------------------------------------- Schedule 2.16(a), the Company does not have, or is not a party to nor is it bound ---------------- by:
(ia) any collective bargaining agreementagreements,
(iib) any agreements employment or arrangements consulting agreement, contract or commitment with any officer, director, employee or member of the Company's Board of Directors, other than those that contain any severance pay or post-employment liabilities or obligationsare terminable by the Company without liability of financial obligation of the Company,
(iiic) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(ivd) any employment or consulting agreement, contract or commitment agreement with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with under which a firm or other organizationorganization provides services to the Company,
(ve) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, or under which payments are required to be made 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,
(vif) any fidelity or surety bond or completion bond,
(viig) any lease of personal property having a value individually in excess of $25,00050,000,
(viiih) any agreement of indemnification or guaranty, other than except for indemnification or guarantees provided in the ordinary course of business in connection with the sale of the Company's products as set forth in agreements listed in Exhibit C, ---------on Schedule 2.15,
(ixi) any agreement, contract or commitment containing any covenant limiting in any respect the freedom right of the Company to engage in any line of business or to compete with any personperson or granting any exclusive distribution rights,
(xj) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments in excess of $25,000100,000,
(xik) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company after the date of this Agreement of a material amount of assets or any interest not in any business enterprise outside the ordinary course of the Company's businessbusiness or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise,
(xiil) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viiih) hereof,
(xiiim) any purchase order or contract involving the expenditure by the Company of $200,000 or more for the purchase of materials involving Company's products or $25,000 100,000 or moremore or otherwise,
(xivn) any construction contracts,
(xvo) any dealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or development merchant agreement,
(p) any agreement pursuant to which the Company has granted or may be obligated to grant in the future, to any party a source code license or option or other right to use or acquire source code, including any agreements which provide for source code escrow arrangements,
(q) any sales representative, original equipment manufacturer, value added, remarketer or other agreement for distribution of the Company's products or services or the products or services of any other person or entity,
(r) any agreement pursuant to which the Company has advanced or loaned any amount to any shareholder of the Company or any director, officer, employee or consultant other than business travel advances in the ordinary course of business consistent with past practice,
(s) any settlement agreement entered into since the Company's initial incorporation, or
(xvit) any other agreement, contract or commitment agreement that involves $25,000 100,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Seagate Technology Inc), Agreement and Plan of Reorganization (Seagate Technology Malaysia Holding Co Cayman Islands)
Agreements, Contracts and Commitments. (a) The Company does not haveExcept as set forth in Schedule 2.14, or Zap Santa ▇▇▇▇ is not currently a party to nor is it currently bound by:
(ia) any collective bargaining employment or consulting agreement,, contract or commitment with any officer, director, employee or member of the Zap Santa Cruz's Board of Directors, other than those that are terminable by Zap Santa ▇▇▇▇ at will;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iiib) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(vc) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(vi) any fidelity or surety bond or completion bond,
(viid) any lease of personal property having a value individually in excess of $25,000,500;
(viiie) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------;
(ixf) any agreement, contract or commitment containing any covenant limiting in any respect the freedom right of the Company Zap Santa ▇▇▇▇ to engage in any line of business or to compete with any person,person or granting any exclusive distribution rights;
(xg) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments in excess of $25,000,500;
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xiih) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,;
(xiiii) any purchase order or contract for the purchase of materials involving $25,000 500 or more,more in total payments;
(xivj) any construction contracts,;
(xvk) any dealer, distribution, joint marketing (excluding joint marketing agreements: (i) involving financial obligations or development liabilities to the Company; or (ii) that do not involve rights to sell Company Products to end-users), development, content provider, destination site or merchant agreement;
(l) any agreement pursuant to which the Company has advanced or loaned any amount to any shareholder of the Company or any director, officer, employee or consultant;
(m) any settlement agreement entered into since the Company's initial incorporation; or
(xvin) any other agreement, contract or commitment agreement that involves $25,000 500 in total payment or more or is not cancelable without penalty within thirty (30) days.
(b) The Company . Zap Santa ▇▇▇▇ has not, and has not breached, violated or defaulted under, or received notice that it has has, breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closingbe set forth on Schedule 2.14.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Zapworld Com), Agreement and Plan of Reorganization (Zapworld Com)
Agreements, Contracts and Commitments. (a) The Company does not haveExcept as filed with the SEC or contemplated to be transferred pursuant to the IP Sale Agreement, or Xcyte is not a party to or bound by:
(i) any collective bargaining agreement,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iiia) any bonus, deferred compensation, incentive compensation, pension, profit profit-sharing or retirement plans, or any other employee benefit plans or arrangements,arrangements (including any agreements that contain severance pay);
(ivb) any employment employment, severance, change of control or consulting agreement, contract or commitment with an any employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organization,organization provides services to Xcyte, not terminable by Xcyte on ninety (90) days notice without liability, except to the extent general principles of wrongful termination law may limit Xcyte’s ability to terminate employees at will;
(vc) any agreement or plan, including, without limitation, including any stock option plan, stock appreciation rights right plan, stock purchase plan or stock purchase other equity-based plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement Stock Purchase 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,Stock Purchase;
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viiid) any agreement of indemnification or guaranty, guaranty other than as set forth in indemnification agreements listed in Exhibit C, ---------between Xcyte and any of its officers or directors;
(ixe) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Xcyte to engage in any line of business or to compete with any person,;
(xf) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $25,000,100,000 and not cancelable without penalty;
(xig) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company's business,business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiih) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit in excess of $100,000;
(i) any joint marketing or development agreement;
(i) any distribution agreement (identifying any that contain exclusivity provisions); (ii) any dealer, distributor, joint marketing, alliance, joint venture, shareholder, cooperation, development or other agreement currently in force under which Xcyte has continuing material obligations to jointly market any product, technology or service, or any agreement pursuant to which Xcyte has continuing material obligations to jointly develop any Intellectual Property that will not be owned, in whole or in part, by Xcyte; (iii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Xcyte product, service or technology or any material agreement, contract or commitment currently in force to sell or distribute any Xcyte products or service except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Xcyte; or (iv) licenses or other agreements, including guaranties referred amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in clause (viii) hereof,each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(xiiik) any other agreement, contract or commitment (i) which involve payment or receipt by Xcyte under any such agreement, contract or commitment of $100,000 or more in the aggregate or (ii) that are material to the business operations of Xcyte;
(l) any collective bargaining agreements;
(m) any purchase order or contract for the purchase of raw materials involving $25,000 250,000 or more,;
(xivn) any construction contracts,
(xv) any distribution, joint marketing or development agreement, contract; or
(xvio) any fidelity or surety bond or completion bond. Xcyte has not, nor to Xcyte’s Knowledge has any other agreementparty to an Xcyte Material Contract (as defined below), contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreementof the agreements, contract, license contracts or commitment commitments to which it Xcyte is a party, by which it benefits party or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract, license contract or commitment, a "an “Xcyte Material Contract"), nor is the Company ”) in such manner as would permit any other party to cancel or terminate any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.Xcyte Material
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Xcyte Therapies Inc)
Agreements, Contracts and Commitments. (a) The Except as set forth in Exhibit C, the Company does not have, or is --------- not bound by:
(i) any collective bargaining agreement,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or
(xvi) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in Exhibit C, is not subject to any default thereunder by any party obligated to --------- the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Usweb Corp), Agreement and Plan of Reorganization (Usweb Corp)
Agreements, Contracts and Commitments. (aExcept as set forth on Schedule 3.12(a) The Company or in the ordinary course of its business, Healtheon does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organizationorganization provides services to Healtheon,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Healtheon to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's businessenterprise,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement,
(xvi) any agreement pursuant to which Healtheon has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or
(xvixvii) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company . Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 3.12(b),Healtheon has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits be set forth on Schedule 3.12(a) or by which it is bound Schedule 3.11(b) (any such agreement, contract, license contract or commitment, a "ContractHEALTHEON CONTRACT"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Healtheon Contract is in full force and effect and and, except as otherwise disclosed in Schedule 3.12(b), is not subject to any default thereunder of which Healtheon has knowledge by any party obligated to the Company Healtheon pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Healtheon Corp), Asset Purchase Agreement (Healtheon Corp)
Agreements, Contracts and Commitments. (a) The Except as set forth on Schedule 2.12(a), the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organizationorganization provides services to the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,0005,000 individually or $10,000 in the aggregate,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00020,000 individually or $50,000 in the aggregate,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's businessenterprise,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials and/or supplies involving $25,000 20,000 or more,
(xiv) any construction contracts,
(xv) any dealer, distribution, joint marketing or development agreement,
(xvi) any sales representative, original equipment manufacturer, value added, remarketer, reseller or independent software vendor or other agreement for use or distribution of the Company's products, technology or services,
(xvii) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or
(xvixviii) any other agreement, contract or commitment that involves $25,000 20,000 individually or $50,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) days.
(b) The Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 2.12(b), the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits be set forth on Schedule 2.12(a) or by which it is bound Schedule 2.11(g) (any such agreement, contract, license contract or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.12(b), is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Cypress Semiconductor Corp /De/)
Agreements, Contracts and Commitments. (a) The Company does Except as set forth on Section 2.17(a) of the Disclosure Schedule, Seller is not havea party to, or is not bound by:
(i) any collective bargaining agreement,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson (other than “at will” employment agreements entered into in the ordinary course of business), any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any employee, or any consulting or sales agreement, contract contract, or commitment with a firm or other organization,;
(vii) any agreement or plan, including, without limitation, any stock equity option plan, stock equity appreciation rights plan or stock equity purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(viiii) any fidelity or surety bond or completion bond,;
(viiiv) any lease of personal property having a value individually in excess of $25,000,property;
(viiiv) any lease of real property;
(vi) except as provided in Section 2.17(a)(vii) below, any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(xvii) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,10,000 individually or $50,000 in the aggregate;
(xiviii) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,Seller’s Business;
(xiiix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,;
(xiiix) any purchase order or contract for the purchase of materials involving in excess of $25,000 5,000 individually;
(xi) any construction contracts;
(xii) any partnership, dealer, distribution, joint marketing, joint venture, strategic alliance, affiliate, development agreement or more,similar agreement;
(xiii) any agreement, contract or commitment to alter Seller’s interest in any corporation, association, joint venture, partnership or business entity in which Seller directly or indirectly holds any interest;
(xiv) any construction contracts,sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for use or distribution of the products, technology or services of Seller; or
(xv) any distributionother than customer purchase orders, joint marketing or development agreement, or
(xvi) any other agreement, contract or commitment that involves $25,000 5,000 individually or $10,000 in the aggregate or more or with respect to any Person and is not cancelable without penalty within thirty 30 days. Each of the Contracts listed on or required to be listed on Section 2.17(a) of the Disclosure Schedule (30other than the Excluded Contracts) daysshall be referred to as a “Material Contract” and collectively, as the “Material Contracts.”
(b) The Company Except as set forth in Section 2.17(b) of the Disclosure Schedule, there are no end-user customers that account for greater than five percent (5%) of Seller’s net sales. Section 2.17(b) of the Disclosure Schedule contains a list of Seller’s 10 largest customers for the l2 months ending June 30, 2010, and sets forth opposite the name of each such customer the percentage of net sales attributable to such customer. During the last 12 months, Seller has not received any written notices or threats of termination from any of such customer that any such customer intends or otherwise anticipates a termination or material reduction in the level of business with Seller. True and complete copies of each Material Contract have been delivered to Buyer or made available to Buyer in Seller’s Virtual Data Room. Except as set forth in Section 2.17(b) of the Disclosure Schedule, each Material Contract to which Seller is a party or any of its properties or assets (whether tangible or intangible) is subject is a valid and binding agreement of Seller enforceable against each of the parties thereto in accordance with its terms, and is in full force and effect in accordance with its terms with respect to Seller; Seller is in compliance with and has not breached, violated or defaulted under, or received written notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment such Material Contract; and no party obligated to which it is a party, by which it benefits or by which it is bound (Seller pursuant to any such agreementMaterial Contract has breached, contractviolated or defaulted under such Material Contract, license or commitmenttaken any action or failed to act, a "Contract")such that, nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each , such action or failure to act would constitute such a breach, violation or default under such Material Contract is in full force and effect and is not subject to any default thereunder by any party obligated such other party.
(c) Subject to the Company pursuant thereto. The Company has obtainedexecution and delivery of all required assignment agreements and consents, or will obtain prior to following the Closing Date, the Buyer will be permitted to exercise all necessary consentsof its rights under the Material Contract without the payment of any additional amounts or consideration other than ongoing obligations, waivers and approvals fees, royalties or payments which Seller would otherwise be required to satisfy, perform or pay pursuant to the terms of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain had the transactions contemplated by this Agreement not occurred. Except with respect to this Agreement, Seller is not in effect violation of any term of or in default under (A) the Charter Documents or (B) any Material Contract.
(d) All outstanding Indebtedness of Seller may be prepaid without modification after the Closingpenalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Except as set forth in Section 2.15 of the Disclosure Schedule (specifying the appropriate subparagraph), the Company does not have, or is not a party to, nor is it bound by:by any of the following (each, a “Material Contract”):
(i) any collective bargaining agreement,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonusemployment, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment contractor or consulting agreement, agreement or contract or commitment with an employee or individual consultant consultant, contractor or salesperson salesperson, or consulting or sales agreement, contract or commitment with a firm or other organization,services agreement that is not terminable by the Company at will and without material penalty;
(vii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional subsequent events) 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,;
(viiii) any fidelity or surety bond or completion bond,;
(viiiv) any lease of personal property or equipment having a value individually in excess of $25,000,50,000 individually or $250,000 in the aggregate;
(viiiv) any agreement of indemnification or guaranty, other than as set forth but excluding agreements of indemnification or guaranty with respect to the infringement by the Company products of the Intellectual Property Rights of third parties that are contained in the Company’s written agreements listed with its customers that have been entered into in Exhibit Cthe ordinary course of business, ---------consistent with past practices;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(xvi) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,150,000 individually or $500,000 in the aggregate;
(xivii) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,, consistent with past practices;
(xiiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(ix) any purchase order, including guaranties referred contract or other commitment obligating the Company to purchase materials or services at a cost in clause excess of $150,000 individually or $500,000 in the aggregate;
(viiix) hereofany agreement containing covenants or other obligations granting or containing any current or future commitments regarding exclusive rights, non-competition, “most favored nations,” restriction on the operation or scope of its businesses or operations, or similar terms;
(xi) any dealer, distribution, marketing, development, sales representative, original equipment manufacturer, manufacturing, supply, value added, remarketer, reseller, vendor, business partner, service provider or joint venture agreement;
(xii) any agreement pursuant to which the Company receives revenue or other payments in excess of $150,000 individually or $500,000 in the aggregate;
(xiii) any purchase order or contract for contracts and licenses, including out-bound licenses with respect to the purchase of materials involving $25,000 or more,Company’s products;
(xiv) any construction contracts,, licenses and agreements to which the Company is a party with respect to any Technology or Intellectual Property Rights, including without limitation any in-bound licenses, out-bound licenses and cross-licenses (but excluding standard Shrink Wrap Code licenses, end user licenses or other customer agreements entered into in the ordinary course of business); or
(xv) any distribution, joint marketing or development agreement, or
(xvi) any other agreement, contract or commitment that involves $25,000 individually or $250,000 in the aggregate or more or and is not cancelable by the Company without penalty within thirty (30) days.
(b) The Company is in compliance in all material respects with and has not materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Material Contract"), nor is does the Company or any -------- Principal Shareholder aware have Knowledge of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Material Contract is in full force and effect effect, and is not subject to any default thereunder by any the Knowledge of the Company, no party obligated to the Company pursuant theretoto any such Material Contract is subject to any default thereunder. The Company has obtainedAs of the date of this Agreement, or will obtain prior to the Closing DateKnowledge of the Company, all necessary consents, waivers and approvals no party to a Material Contract has any intention of parties to any terminating such Material Contract as are required thereunder in connection with the Merger so that all Company or reducing the volume of business such Contracts will remain in effect without modification after party conducts with the ClosingCompany.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Company Other than those listed in Section 2A.12 of the Partnership Disclosure Schedule, the Partnership does not have, or is not a party to nor is it bound by:
(ia) any collective bargaining agreementagreements,
(iib) any agreements or arrangements that contain any unpaid severance pay or post-employment liabilities or obligations,
(iiic) any bonus, deferred compensation, incentive compensation, option, pension, profit profit-sharing or retirement plans, or any other employee benefit plans or arrangements,
(ivd) any employment or consulting agreement, contract or commitment (other than employment letters) with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization, not terminable by the Partnership on thirty days notice without liability,
(ve) any agreement or planinsurance policy, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bondbond not listed in Section 2A.20 of the Partnership Disclosure Schedule,
(viif) any lease of personal property having a value individually in excess of $25,000,
(viiig) any agreement of indemnification or guaranty, other than as set forth guaranty not entered into in agreements listed in Exhibit C, ---------the ordinary course of business,
(ixh) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Partnership to engage in any line of business or to compete with any personPerson,
(xi) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $25,000,
(xij) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company's businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise,
(xiik) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viiig) hereof,
(xiiil) any purchase order or contract for the purchase of raw materials or acquisition of assets involving $25,000 or moremore in any single instance or $100,000 or more in the aggregate,
(xivm) any construction contractscontracts involving $25,000 or more in any single instance or $100,000 or more in the aggregate,
(xvn) any distribution, joint marketing or development agreement, or,
(xvio) any lease for switches or any other machinery, equipment or other personal property involving payment of aggregate rentals in excess of $25,000,
(p) any contract pursuant to which the Partnership has access to the telephone network of another Person other than the Partnership's internal commercial telephone service and any contracts for the resale of any network capacity of the Partnership,
(q) any agreement, contract, lease or easement pursuant to which the Partnership has the right of way to use any premises or real property to locate and/or install fiber lines on, under or through such premises or real property,
(r) any agreement or commitment obligating the Partnership to deliver any product or service at a price which does not cover the cost (including labor, materials and production overhead), plus a reasonable profit margin, for such product or service,
(s) any joint venture, partnership or other cooperative arrangement or agreement involving a sharing or profits or losses,
(t) any other agreement, contract or commitment that which involves $25,000 or more or and is not cancelable without penalty within thirty (30) days., or
(bu) any agreement which is otherwise material to the Partnership's business. The Company Partnership has not breached, violated or defaulted under, or received notice any claim or threat that it has breached, violated or defaulted under, any of the terms or conditions of any material agreement, contract, license contract or commitment to which it is a party, by which it benefits or by which it is bound (including, but not limited to, those set forth in Section 2A.12 or any other section of the Partnership Disclosure Schedule) in such manner as would permit any other party to cancel or terminate the same. Each agreement, contract, license contract or commitment, commitment to which the Partnership is a "Contract"), nor party and that is required to be set forth in the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract Partnership Disclosure Schedule is in full force and effect and and, except as otherwise disclosed, is not subject to any material default thereunder by any party obligated to the Company pursuant thereto. The Company Partnership is not bound by any material contract, agreement, license, lease or other commitment, a copy of which has obtainednot been previously provided or made available to IWL. The Partnership, after making an inquiry of all of its employees and Partners and their respective officers, directors, shareholders and appropriate employees, does not have any reason to expect that any change may occur in the relationships of the Partnership with its suppliers or customers as a result of the Interest Exchange, which change would have a Material Adverse Effect on the Partnership. No supplier of or customer of the Partnership has indicated within the past year that it will stop, or will obtain prior decrease the rate of supplying or purchasing materials, products, or services to or from the Closing DatePartnership, all necessary as a result of the Mergers or the Interest Exchange. Except as described in Section 2A.4, no consents, waivers and or approvals under any of parties the Partnership's material agreements, contacts, licenses or leases are necessary in order to preserve the benefits thereunder for the Surviving Corporation or otherwise to avoid any Contract breach, default or right of termination or other right as are required thereunder in connection with a result of the Merger so that all such Contracts will remain in effect without modification after Mergers or the ClosingInterest Exchange.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Except as set forth on Schedule 2.12(a), Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,00015,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00015,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 15,000 or moremore other than purchases in the ordinary course of business,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or
(xvi) any other agreement, contract or commitment that involves $25,000 15,000 or more or and is not cancelable without penalty within thirty (30) days.
(ba) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license contract or commitment, a "ContractCONTRACT")) except for breaches, nor is the Company violations or any -------- Principal Shareholder aware of any event defaults that would constitute such will not have a breach, violation or default with the lapse of time, giving of notice or bothMaterial Adverse Effect. Each Contract agreement, contract or commitment set forth in any of Company Schedules is in full force and effect and and, except as otherwise disclosed in Schedule 2.12(b), is not subject to any default thereunder of which Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Merger Agreement (Netrix Corp)
Agreements, Contracts and Commitments. (aA) The Company Except as specifically disclosed in Schedule 2.12, Vista Vacations does not have, or is not a party to nor is it bound by:
(i1) any Any collective bargaining agreement,agreements;
(ii2) any Any agreements or arrangements that contain any unpaid severance pay or post-employment liabilities or obligations,;
(iii3) any Any bonus, deferred compensation, incentive compensation, pension, profit profit-sharing or retirement plans, or any other employee benefit plans or arrangements,;
(iv4) any Any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,, not terminable by Vista Vacations on thirty days notice without liability, except to the extent general principles of wrongful termination law may limit Vista Vacations' ability to terminate employees at will;
(v5) any Any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(vi6) any Any fidelity or surety bond or completion bond,;
(vii7) any Any lease of personal property having a value individually in excess of $25,000,2,000;
(viii) any 8) Any agreement of indemnification or guaranty, other than as set forth guaranty not entered into in agreements listed in Exhibit C, ---------the ordinary course of business;
(ix9) any Any agreement, contract or commitment containing any covenant limiting the freedom of the Company Vista Vacations to engage in any line of business or to compete with any person,;
(x10) any Any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $25,000,2,000 in any single instance or $10,000 in the aggregate;
(xi11) any Any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company's business,business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xii12) any Any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viiiSchedule 2.12(A)(12) hereof,;
(xiii13) any Any purchase order or contract for the purchase of raw materials or acquisition of assets involving $25,000 1,000 or more,more in any single instance or $10,000 or more in the aggregate;
(xiv14) any Any construction contracts,;
(xv15) any Any distribution, joint marketing or development agreement, or;
(xvi16) any Any other agreement, contract or commitment that which involves $25,000 1,000 or more in any single instance or more than $10,000 in the aggregate and is not cancelable without penalty within thirty (30) daysdays other than standard end-user licenses of Vista Vacations' products and services in the ordinary course of business consistent with past practice, or
(17) Any agreement which is otherwise material to Vista Vacations' business.
(bB) The Company (1) Vista Vacations has not breached, violated or defaulted under, or received notice any claim or threat that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment to which it is a party, by which it benefits or by which it is bound (including those set forth in any of Vista Vacations Schedules) in such agreement, contract, license manner as would permit any other party to cancel or commitment, a "Contract"), nor is terminate the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closingsame.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Except as set forth in Exhibit C, the Company does not have, or --------- is not bound by:
(i) any collective bargaining agreement,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or
(xvi) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in Exhibit C, is not subject to any default thereunder by any party obligated to --------- the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Except as set forth on Schedule 2.12(a), the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(xix) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,disposition
(xiixi) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiiixii) any purchase order or contract for the purchase of raw materials involving $25,000 or moremore other than purchases in the ordinary course of business,
(xivxiii) any construction contracts,
(xvxiv) any distribution, joint marketing or development agreement, or
(xvixv) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(ba) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license contract or commitment, a "ContractCONTRACT"). Each agreement, nor is contract or commitment set forth in any of the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract Schedules is in full force and effect and and, except as otherwise disclosed in Schedule 2.12(b), is not subject to any default thereunder of which the Company or Founder has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing DateEffective Time, all necessary consents, waivers and approvals of parties to any Contract (other than the agreement identified on Schedule 2.4(3)) as are required thereunder in connection with the Merger so that all such Contracts will remain except those that, if not obtained after best efforts, would not individually or in the aggregate be material to the Company or have a material adverse effect without modification after on the Closingability of the Company to consummate the Merger.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Network Associates Inc)
Agreements, Contracts and Commitments. (a) The Except as set forth on Company Schedule 2.12(a), the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organizationorganization provides services to the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(xix) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xiixi) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiiixii) any executory purchase order or contract for the purchase of raw materials involving $25,000 or more,
(xivxiii) any construction contracts,
(xvxiv) any distribution, joint marketing or development agreement,
(xv) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or
(xvi) any other agreement, contract or commitment that involves requires future payments by the Company of $25,000 or more or and is not cancelable without penalty within thirty (30) days.
(b) The . Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Company Schedule 2.12(b), the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits be set forth on Company Schedule 2.12(a) or by which it is bound Company Schedule 2.11(b) (any such agreement, contract, license contract or commitment, a "ContractCONTRACT"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in Company Schedule 2.12(b), is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Netscape Communications Corp)
Agreements, Contracts and Commitments. (a) The Company Except as set forth on Schedule 2.12(a), ONElist does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreement,agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,;
(iv) any material employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any material consulting or sales agreement, contract or commitment with a under which any firm or other organization,organization provides services to ONElist;
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(vi) any fidelity or surety bond or completion bond,;
(vii) any lease of personal property having a value individually in excess of $25,000,50,000;
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company ONElist to engage in any line of business or to compete with any person,;
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,50,000;
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the CompanyONElist's business,;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,;
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 50,000 or more,;
(xiv) any construction contracts,;
(xv) any distribution, joint marketing or development agreement;
(xvi) any agreement pursuant to which ONElist has granted or may be required to grant in the future, to any party, a source-code license or option or other right to use or acquire source-code; or
(xvixvii) any other agreement, contract or commitment that involves $25,000 50,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are noted in Schedule 2.12(b), ONElist has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits be set forth on Schedule 2.12(a) or by which it is bound Schedule 2.11(h) (any such agreement, contract, license contract or commitment, a "ONElist Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each ONElist Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.12(b), is not subject to any default thereunder of which ONElist has Knowledge by any party obligated to the Company ONElist pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Except as set forth on Schedule 2.12(a), the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment agreement with an employee or individual consultant or salesperson salesperson, or consulting or sales agreement, contract or commitment with under which a firm or other organizationorganization provides services to the Company, and which, in each case, involves payments by or to the Company in excess of $15,000 annually,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,00015,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment agreement containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments in excess of $25,00015,000,
(xi) any agreement, contract or commitment agreement relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of materials involving $25,000 or more,
(xiv) any construction contracts,
(xvxiv) any distribution, joint marketing or development agreement,
(xv) any agreement pursuant to which the Company has granted or may grant in the future, to any party a source-code license or option or other right to use or acquire source-code, or
(xvi) any other agreement, contract or commitment agreement that involves payment by the Company of $25,000 15,000 or more or which is not cancelable without penalty within thirty (30) days.
(b) The . Except for such alleged material breaches, violations and defaults, and events that would constitute a material breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 2.12(a), the Company has not materially breached, violated or defaulted under, or received notice that it has materially breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits be set forth on Schedule 2.11(b) or by which it is bound (any such Schedule 2.12(a). Each agreement, contract, license contract or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract commitment listed on Schedule 2.12(b) is in full force and effect and and, except as otherwise disclosed in Schedule 2.12(b), is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Sanctuary Woods Multimedia Corp)
Agreements, Contracts and Commitments. (a) The Except as set forth on Schedule 2.14(a), the Company does not have, have any obligations under or is not otherwise bound by:
(i) any collective bargaining agreement,agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, agreement or contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreementagreement or contract, contract or commitment with under which a firm or other organization,organization provides services to the Company of a nature which would otherwise be customarily provided under an employment or consulting relationship, pursuant to which the Company is obligated to make payments in excess of $25,000 per year;
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(viiv) any fidelity or surety bond or completion bond,;
(viiv) any lease of personal property having a value individually in excess of $25,000,;
(viiivi) any agreement of indemnification or guarantyguaranty which could result in liability to the Company in excess of $25,000, individually, other than as set forth such indemnification obligations in the Company's software license agreements listed entered into in Exhibit C, ---------the ordinary course of business consistent with past practices;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(xvii) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,25,000 individually;
(xiviii) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,;
(xiiix) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,hereof but excluding advances to employees for travel and business expenses incurred in the ordinary course of business in accordance with past practices; provided, however, that such advances do not exceed an aggregate of $25,000; and excluding extended payment terms offered to customers;
(xiiix) any purchase order or contract for the purchase of materials involving $25,000 or more,;
(xivxi) any construction contracts,contract;
(xvxii) any material distribution, joint marketing or development agreement;
(xiii) any agreement, contract or commitment pursuant to which the Company has granted or may grant in the future, to any party a source-code license or option or other right to use or acquire source-code; or
(xvixiv) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Schedule 2.14(b) sets forth a list of the Company's top 15 customers according to recognized revenue (as determined under GAAP consistently applied) for the fiscal year ended December 31, 2000 and the six-month period ended June 30, 2001, and each customer with which the Company currently has a signed Contract that the Company in good faith expects to be one of the Company's top 15 customers for the fiscal year ending December 31, 2001, and a list of all Contracts between such customer and the Company.
(c) Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all of which are noted in Schedule 2.14(c), the Company has not breached, violated or defaulted under, or received written notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment Contract required to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"be set forth on Schedule 2.14(a), nor is the Company Schedule 2.14(b) or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or bothSchedule referred to in Schedule 2.13. Each Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.14(c), is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Except as set forth on Schedule 2.8 and except as described in each customer's Contract with the Company, neither the Company nor any subsidiary has obtained, any understandings or will obtain prior to the Closing Date, all necessary consents, waivers and approvals obligations of parties any kind to any Contract as customer and has not committed itself to perform any services to any customer that are required thereunder not so described in connection with the Merger so that all such Contracts will remain in effect without modification after the Closingcustomer's Contract.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Edwards J D & Co)
Agreements, Contracts and Commitments. (a) The Company does Except as set forth on Schedule 3.11, the Group Companies are not have, a party to or is not bound by, whether written or oral, any Contract that is a:
(i) Contract involving a potential commitment, payment, loan or investment by any collective bargaining agreement,Group Company (excluding employment Contracts) in excess of an aggregate of $25,000 annually;
(ii) Contract which is not cancelable by any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,Group Company without penalty on not less than ninety (90) days’ notice;
(iii) Contract under which Indebtedness arises or could arise (including guaranty arrangements and debt financing commitments) or under which any bonusGroup Company has mortgaged, deferred compensationpledged, pension, profit sharing suffered to exist or retirement plansotherwise placed, or any committed to mortgage, pledge, suffer to exist or otherwise place, a Lien (other employee benefit plans or arrangements,
(ivthan a Permitted Lien) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, on any of the benefits of which will be increasedits assets or equity interests, or the vesting under which any Group Company provides any guaranty of benefits an obligation of which will be accelerateda third party, 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in each case in excess of $25,000,;
(iv) Contract which contains any provisions requiring any Group Company to indemnify any other party (other than (A) obligations to indemnify a party for damage to personal property or injury or death to persons arising from the negligence of any Group Company and (B) obligations to indemnify for third-party claims of infringement of Intellectual Property under Contracts entered in the ordinary course of business), except as incurred in the ordinary course of business;
(v) Contract involving fixed price or fixed volume arrangements;
(vi) Contract under which any Group Company is lessee of, or holds or operates any personal property owned by any other party calling for payments in excess of $25,000 annually;
(vii) Contract relating to any Group Company’s ownership of or investment in any business or enterprise (including joint ventures and minority equity investments);
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------
(ix) any agreement, contract or commitment Contract containing any covenant limiting in any respect the freedom right of the any Group Company to freely engage in any line of business, to compete with any Person in any line of business or to compete with any person,Person or the manner or locations in which any of them may engage;
(ix) Contract prohibiting or limiting the right of any Group Company to make, sell or distribute any products or services;
(x) Contract pursuant to which any agreement, contract Group Company has agreed to provide “most favored nation” pricing or commitment relating any arrangement whereby any Group Company or the Seller has agreed with any Person that such Person will receive the most favorable terms and conditions that are provided by any Group Company to capital expenditures and involving future any other Person;
(xi) Contract or group of Contracts requiring the purchase of all or substantially all of any the Group Company’s requirements of a particular product from a vendor;
(xii) Contract pursuant to which any Group Company subcontracts work to third parties calling for payments by any Group Company in excess of $25,000,25,000 annually;
(xixiii) Contract with any Governmental Authority;
(xiv) Contract with a Material Prescriber or a Material Supplier;
(xv) acquisition agreement, contract whether by merger, equity interest, asset sale or commitment relating otherwise (i) under which any Group Company has any outstanding obligation to pay any purchase price or under which any Group Company has any contingent obligation to pay any contingent purchase price or (ii) under which any Group Company at any time during the disposition last five (5) years had an obligation to pay more than $25,000 in purchase price;
(xvi) Contract for the employment of any officer, individual employee, or acquisition other Person on a full-time or part-time basis, services, consulting, change in control, retention, or other similar Contract, in each case providing annual cash or other compensation in excess of assets $100,000, with the exception of offer letters for “at-will” employment that do not provide for severance, change of control or retention benefits;
(xvii) Contract providing for payment upon the severance or termination of any interest full-time or part-time Service Provider;
(xviii) Contract with any Service Provider containing any noncompetition, nonsolicitation, invention assignment, and/or confidentiality provision, excluding any Contracts disclosed on Schedule 3.11(a)(xvi) or Schedule 3.11(a)(xvii);
(xix) Contract providing for any bonus payment by any member of the Group Company to any Service Provider excluding any Contracts disclosed on Schedule 3.11(a)(xvi) or Schedule 3.11(a)(xvii);
(xx) Settlement or separation Contract with any Service Provider under which any Group Company has any outstanding financial obligations;
(xxi) Contract providing for material liquidated damages or penalties on event of transfer, assignment or default;
(A) Licenses In (other than commercial off the shelf software that is made available for a total cost of less than $25,000) and (B) Licenses Out;
(xxiii) Contract not executed in any business enterprise outside the ordinary course of the Company's business,business that is not otherwise set forth on Schedule 3.11;
(xiixxiv) any mortgagesContract with a pharmaceutical, indenturesbiological, loans or credit agreementsmedical device manufacturer, security agreements distributor, or pharmaceutical wholesaler; pharmacy benefit manager, group purchasing organization; or other agreements third party whereby the Company receives or instruments relating is entitled to the borrowing of money receive (A) discounts, rebates or extension of creditother price concessions on any pharmaceutical, including guaranties biological, medical device product, (B) any service fees or (C) any other compensation;
(xxv) Contract with any Governmental Health Care Program or payor;
(xxvi) any Contract with pharmacy providers, Health Care Professionals, physician practice groups, hospitals, clinical laboratories, DME suppliers, home health service providers, physical therapy, occupational therapy, skilled nursing facilities, and other health care providers; or
(xxvii) Contract not otherwise referred to in clause (viii) hereof,
(xiii) any purchase order this Section 3.11 that if terminated would have or contract for the purchase of materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or
(xvi) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) daysbe reasonably likely to result in a Material Adverse Effect.
(b) The Contracts required to be disclosed on Schedule 3.11, Schedule 3.12 or Schedule 3.23 are referred to herein as the “Company Contracts.” The Company has delivered to Buyer true, correct and complete copies of each Company Contract, together with all amendments, waivers and other changes thereto (all of which are disclosed on Schedule 3.11, Schedule 3.12 or Schedule 3.23). Except as disclosed on Schedule 3.11, Schedule 3.12 or Schedule 3.23: (i) no Company Contract has been canceled or, to the Company’s Knowledge, in default or breached by the other party thereto, (ii) the Group Companies have performed, in all material respects, all of the obligations required to be performed by them in connection with the Company Contracts and are not breached, violated or defaulted in default under, or received notice that it has breached, violated or defaulted underin breach of, any of the terms Company Contract, and no event or conditions of any agreement, contract, license condition has occurred or commitment to arisen which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse passage of time, time or the giving of notice or both. Each both would result in a default or breach thereunder, and (iii) each Company Contract is legal, valid, binding, enforceable and in full force and effect effect, and is not will continue as such following the consummation of the transactions contemplated hereby, subject to any default thereunder by any party obligated bankruptcy, insolvency, reorganization, moratorium and similar Laws of general applicability relating to the Company pursuant thereto. The Company has obtained, or will obtain prior affecting creditors’ rights and to the Closing Date, all necessary consents, waivers and approvals general principles of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closingequity.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Except as set forth in Schedule 2.13(a), the Company does not have, or is not a party to, nor is it bound by:
(i) any collective bargaining agreement,agreements;
(ii) any agreements or arrangements that contain any change of control or severance pay or post-employment liabilities or obligations,;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,;
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(vi) any fidelity or surety bond or completion bond,;
(vii) any lease of personal property having a value individually in excess of $25,000,10,000;
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,;
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,20,000, either individually or in the aggregate;
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,;
(xiii) any purchase order or contract for the purchase of materials involving $25,000 or more,, either individually or in the aggregate;
(xiv) any construction contracts,;
(xv) any distribution, joint marketing or development agreement, ; or
(xvi) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) Section 2.13(b) of the Company Disclosure Schedule contains a complete and accurate list, and Company has delivered to Parent true and complete copies of each material agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it is bound (each, a “Contract” and collectively, the “Contracts”). The Company is in compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is do the Company or any -------- Principal Sole Shareholder aware have knowledge of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Section 2.13(b) of the Company Disclosure Schedule also denotes each Contract that needs consent from the other party thereto to assign such Contract to Merger Sub. Section 2.13(b) of the Company Disclosure Schedule also denotes each Contract with obligations that will need to be fulfilled by the Surviving Entity after the Effective Time with a description of the remaining obligations under such Contracts. Each Contract is a valid and binding agreement of the Company, is in full force and effect effect, and is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all or for such Contracts will to remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Merger Agreement (Comscore, Inc.)
Agreements, Contracts and Commitments. (a) The Company Except as set forth on SCHEDULE 3.12(a), Parent does not have, or is not a party to and is not bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organizationorganization provides services to Parent,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,00050,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Parent to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00050,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the CompanyParent's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 50,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement,
(xvi) any agreement pursuant to which Parent has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or
(xvixvii) any other agreement, contract or commitment that involves $25,000 50,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in SCHEDULE 3.12(b), Parent has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any End-User License or any agreement, contract, license contract or commitment required to which it is a party, by which it benefits be set forth on SCHEDULE 3.12(a) or by which it is bound SCHEDULE 3.12(b) (any such agreement, contract, license contract or commitment, a "ContractCONTRACT"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in SCHEDULE 3.12(b), is not subject to any material default thereunder thereunder, of which Parent has knowledge, by any party obligated to the Company a Parent pursuant thereto. The Company has obtainedFollowing the Effective Time, Parent will be permitted to exercise all of such Parent's rights under the Contracts without the payment of any additional amounts or will obtain prior consideration other than ongoing fees, royalties or payments which Parent would otherwise be required to pay had the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closingtransactions contemplated by this Agreement not occurred.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Citadel Technology Inc)
Agreements, Contracts and Commitments. (a) The Except as set forth on Schedule 2.12(a), the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee em ployee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment agreement with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment agreement with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,00015,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment agreement containing any covenant limiting the freedom of the Company or its present and future affiliated entities to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments in excess of $25,00015,000,
(xi) any agreement, contract or commitment agreement relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 5,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or,
(xvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party a source-code license or option or other agreementright to use or acquire source-code, contract or commitment or
(xvii) any other agreement that involves $25,000 5,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 2.12(b), the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits be set forth on Schedule 2.12(a) or by which it is bound Schedule 2.11(g) (any such agreement, contract, license contract or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise -------- disclosed in Schedule 2.12(b), is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtaineddelivered to Parent or its counsel true and complete copies of each Contract, and any other agreement or document referenced in the Company Schedules or requested by Parent or its counsel.
(c) The Company has performed all services required to be performed and has delivered all required deliverables under the terms of that certain Joint Development Agreement (the "Development Agreement") between the Company --------------------- and Avnet dated August 1, 1998, and (ii) Avnet has paid or has been invoiced for all amounts required to be paid under the terms of the Development Agreement, and neither the Company, ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇ has any reason to believe that any such invoiced amounts will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closingnot be paid.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Smartforce Public LTD Co)
Agreements, Contracts and Commitments. (a) The Company does not have, or is not a party to, nor is it bound by:by (other than this Agreement and the Company Ancillary Agreements):
(i) any collective bargaining agreement,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(xix) any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xiixi) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiiixii) any purchase order or contract for the purchase of materials involving $25,000 or more,
(xivxiii) any construction contracts,
(xvxiv) any distribution, joint marketing or development agreement, or
(xvixv) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits party or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would -------- constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and to the knowledge of the Company, is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, obtained all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Except as disclosed in ------------------------------------- Section 2.12 of the Disclosure Schedule, the Company does not have, or have and is not bound bya party to:
(ia) any collective bargaining agreementagreements,
(iib) any agreements or arrangements that contain any unpaid severance pay or post-employment liabilities or obligations,
(iiic) any bonus, deferred compensation, incentive compensation, pension, profit profit-sharing or retirement plans, or any other employee benefit plans or arrangements,
(ivd) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization, not terminable by the Company on thirty days notice without liability, except to the extent general principles of wrongful termination law may limit the Company's ability to terminate employees at will,
(ve) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vif) any fidelity or surety bond or completion bond,
(viig) any lease of personal property having a value individually in excess of $25,00050,000,
(viiih) any agreement of indemnification or guaranty, other than as set forth guaranty not entered into in agreements listed in Exhibit C, ---------the ordinary course of business,
(ixi) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(xj) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $25,00050,000,
(xik) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company's businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise,
(xiil) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viiih) hereof,
(xiiim) any purchase order or contract for the purchase of raw materials or acquisition of assets involving $25,000 50,000 or more,
(xivn) any construction contracts,
(xvo) any distribution, joint marketing or development agreement, or,
(xvip) any other agreement, contract or commitment that which involves $25,000 50,000 or more or and is not cancelable without penalty within thirty (30) days., or
(bq) any agreement which is otherwise material to the Company's business. The Company has not breached, violated or defaulted under, or received notice in writing any claim or threat that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment to which it is a party, by which it benefits or by which it is bound (including those set forth in any of the lists separately certified by the Company) in such agreement, contract, license manner as would permit any other party to cancel or commitment, a "Contract"), nor is terminate the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closingsame.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Flycast Communications Corp)
Agreements, Contracts and Commitments. (a) The Except as set forth on Schedule ------------------------------------- 2.12(a), the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment employmen t liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organizationorganization provides services to the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement,
(xvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or
(xvixvii) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.12(b), is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Merger Agreement (Cirrus Logic Inc)
Agreements, Contracts and Commitments. Except as set forth in Section 2.16(a) of the Disclosure Schedule:
(a) The as of the date hereof, neither the Company does not havenor any of its Subsidiaries is a party to, or nor is not it bound by:by any of the following (each, a “Material Contract” and collectively, the “Material Contracts”):
(i) any collective bargaining agreement,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plansEmployee Agreement, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreementsimilar contractor, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract contract, or commitment with a firm or other organization,organization that is significant to the Company or any of its Subsidiaries;
(vii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(viiii) any fidelity or surety bond or completion bond,;
(viiiv) any lease of real or personal property having a value individually in excess of $25,000,75,000 individually;
(viiiv) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(xvi) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,75,000 individually;
(xivii) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s and its Subsidiaries’ business,;
(xiiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,;
(xiiiix) any purchase order or contract for the purchase of materials involving in excess of $25,000 75,000 individually;
(x) any material construction contracts;
(xi) any dealer, distribution, strategic alliance, affiliate or more,development agreement, or any joint marketing agreement in which the payments received or paid by the Company or any of its Subsidiaries exceed $75,000 individually;
(xii) any agreement, contract or commitment to alter the Company’s interest in any Subsidiary, corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(xiii) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for use or distribution of the products, technology or services of the Company or any of its Subsidiaries (excluding Standard Form Agreements);
(xiv) any construction contracts,nondisclosure, confidentiality or similar agreement that is still in effect, other than those entered into with any actual or prospective customer or vendor in the ordinary course of business consistent with past practices (excluding Standard Form Agreements); or
(xv) any distribution, joint marketing or development agreement, or
(xvi) any other agreement, contract or commitment (excluding Standard Form Agreements) that involves $25,000 75,000 individually per annum or more or and is not cancelable without penalty within thirty (30) 30 days.
(b) Except as set forth in Section 2.16(b) of the Disclosure Schedule, each Material Contract, IP Contract, Standard Form Agreement and other Contract with third parties to which the Company or any of its Subsidiaries is a party or any of their respective properties or assets (whether tangible or intangible) is subject (the “Standard Contracts”) is a valid and binding agreement of the Company or any of its Subsidiaries, as the case may be, enforceable against such Person in accordance with its terms, and is in full force and effect with respect to the Company or the applicable Subsidiary and, to the Knowledge of the Company, any other party thereto, in each case subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights generally and limitations on the availability of equitable remedies. The Company has and each of its Subsidiaries are in material compliance with and have not materially breached, violated or defaulted under, or received written notice that it has they have materially breached, violated or defaulted under, any of the terms or conditions of any agreementMaterial Contract, contractIP Contract, license Standard Form Agreements, Contract with a Major Customer, or commitment Standard Contract, nor, to which it the Knowledge of the Company, is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is party obligated to the Company or any -------- Principal Shareholder aware of its Subsidiaries pursuant to any event that would constitute such Material Contract, IP Contract, Standard Form Agreement, Contract with a Major Customer, or Standard Contract subject to any material breach, violation or default thereunder, nor does the Company have Knowledge of any event that with the lapse of time, giving of notice or bothboth would constitute such a breach, violation or default by the Company, its Subsidiaries or any such other party not disclosed in Section 2.16(b) of the Disclosure Schedule. Each True and complete copies of each Material Contract disclosed in the Disclosure Schedule or required to be disclosed pursuant to this Section 2.16 have been made available to Parent; provided, however, that notwithstanding the foregoing, it is in full force and effect and is not subject to any default thereunder by any party obligated to understood that the Company pursuant thereto. shall not be required to list in Section 2.16(b) of the Disclosure Schedule or make available to Parent any Material Contract described in Sections 2.16(a)(v) (with respect to Intellectual Property only), 2.16(a)(xiii) and 2.16(a)(xiv) unless (i) such Material Contract was entered into after January 1, 2000 or (ii) the Company has Actual Knowledge of such Material Contract.
(c) The Company has obtained, and each of its Subsidiaries have fulfilled all material obligations required to have been performed by the Company or will obtain any Subsidiary prior to the Closing Datedate hereof pursuant to each Material Contract, all necessary consentsIP Contract, waivers Standard Form Agreement or Standard Contract to which the Company or any of its Subsidiaries is a party or any of their respective properties or assets (whether tangible or intangible) is bound.
(d) As of the date hereof, there are no disputes or disagreements, and approvals the Company has no Knowledge as of parties the date hereof of any threatened disputes or disagreements, with respect to any Material Contract to which the Company or any of its Subsidiaries is a party or any of their respective properties or assets (whether tangible or intangible) is subject.
(e) The Material Contracts and IP Contracts to which the Company or any of its Subsidiaries is a party or any of their respective properties or assets (whether tangible or intangible) is subject which constitute licenses of goods, services or rights from third parties that are incorporated in any products, services or rights which the Company or its Subsidiaries sublicense to their customers are fully sublicenseable without any further payment to any Person, except as identified in Section 2.16(e) of the Disclosure Schedule. Except as disclosed in Section 2.16(e) of the Disclosure Schedule, no royalties, fees, honoraria, volume-based, milestone or other payments are required thereunder in connection payable by the Company or any of its Subsidiaries to any Person by reason of the ownership, use, sale, licensing, distribution or other exploitation of any Intellectual Property relating to the conduct or operation of the Business or the delivery or provision of any products, services or rights delivered or provided thereby or thereunder, except for obligations relating solely to end-user operating systems and application software, the license of which is obtained with the Merger so that all such Contracts will remain acquisition or license thereof.
(f) Except as may be set forth in effect Section 2.16(f) of the Disclosure Schedule, none of the Company or any of its Subsidiaries has granted any other Person any exclusive right to manufacture, have manufactured, assemble, license, sublicense or sell any Company Products or Proposed Company Products or to provide the services or proposed services of the business of the Company or any of its Subsidiaries.
(g) All outstanding indebtedness for borrowed money of the Company or its Subsidiaries may be prepaid without modification after the Closingpenalty.
Appears in 1 contract
Sources: Merger Agreement (Autodesk Inc)
Agreements, Contracts and Commitments. (a) The Except for the agreements listed on Schedule 2.10 attached hereto (true and correct copies of which have been delivered to the Buyer), the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreement,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,;
(vii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(viiii) any fidelity or surety bond or completion bond,;
(viiiv) any lease of personal property having a value individually with fixed annual rental payments in excess of $25,000,10,000;
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------
(ixv) any agreement, contract contract, commitment or commitment grant containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,;
(xvi) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,10,000 either individually or in the aggregate;
(xivii) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,;
(xiiviii) any mortgagesmortgage, indenturesindenture, loans loan or credit agreementsagreement, security agreements agreement or other agreements agreement or instruments instrument relating to the borrowing of money, the extension of credit or placing of liens on any assets of the Company; 5
(ix) any guaranty of any obligation for borrowed money or extension of credit, including guaranties referred to in clause (viii) hereof,otherwise;
(xiiix) any purchase order or contract for the purchase of materials involving in excess of $25,000 10,000 either individually or more,in the aggregate;
(xivxi) any construction contracts,
(xv) any dealer, distribution, joint marketing or development agreement;
(xii) any sales representative, original equipment manufacturer, value added, remarketing or other agreement for distribution of the Company's products or services;
(xiii) any collective bargaining agreement or contract with any labor union;
(xiv) any bonus, pension, profit sharing, retirement or other form of deferred compensation plan;
(xv) any medical insurance or similar plan; or
(xvi) any other agreement, contract contract, commitment or commitment that involves grant pursuant to which the obligations of any party thereto is in excess of $25,000 or more or is not cancelable without penalty within thirty (30) days10,000.
(b) The Company is in compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, grant, covenant, instrument, lease, license or commitment to which it the Company is a party, by which it benefits party or by which it is its assets are bound (any such agreement, contract, license or commitmentcollectively, a "Contract"), nor is the Company or any -------- Principal either Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all for such Contracts will to remain in effect without modification or termination after the Closing. Following the Closing Date, the Company will be permitted to exercise all of its rights under the Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurred.
Appears in 1 contract
Sources: Stock Purchase Agreement (Gateway International Holdings Inc)
Agreements, Contracts and Commitments. (a) The Except as set forth on Schedule 2.12(a), the Company does not have, or is not currently a party to or bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment (other than as provided by statute or other law) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organizationorganization provides services to the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000100,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets assets, or any interest in any business enterprise enterprise, outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement,
(xvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or
(xvixvii) any other agreement, contract or commitment that involves $25,000 or more or and is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached. Except for such alleged breaches, violated or defaulted underviolations and defaults, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event and events that would constitute such a breach, violation or default with the lapse of time, giving of notice notice, or both. Each Contract is in full force and effect and is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder all noted in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.Schedule
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Quickturn Design Systems Inc)
Agreements, Contracts and Commitments. (a) The Except as set forth in Section 2.15 of the Disclosure Schedule (specifying the appropriate subparagraph), the Company does not have, or is not a party to, nor is it bound by:by any of the following (each, a “Material Contract”):
(i) any collective bargaining agreement,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonusemployment, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment contractor or consulting agreement, contract or commitment with an employee or individual consultant consultant, contractor or salesperson salesperson, or consulting consulting, services or sales agreement, contract contract, or commitment with a firm that is either (a) not terminable by the Company at will and without penalty, or other organization,(b) requires payments by the Company in any calendar year in excess of $50,000;
(vii) other than the Plan and agreements entered into thereunder in connection with Company Options and Company SARs, any agreement or plan, including, without limitation, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional subsequent events) 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,;
(viiii) any fidelity or surety bond or completion bond,;
(viiiv) any lease of personal property having a value individually or equipment requiring payments by the Company in excess of $25,000,50,000 individually or $250,000 in the aggregate in any calendar year;
(viiiv) any agreement of indemnification or guaranty, other than as set forth indemnification and similar provisions contained in agreements listed any agreement entered into in Exhibit Cthe ordinary course of business, ---------consistent with past practice, on the Company’s standard form without material modification;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(xvi) any agreement, contract or commitment relating to capital expenditures and involving future payments by the Company in excess of $25,000,50,000 individually or $250,000 in the aggregate in any calendar year;
(xivii) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,, consistent with past practices;
(xiiviii) any mortgages, indentures, guaranties, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(ix) any purchase order, including guaranties referred contract or other commitment obligating the Company to purchase materials or services at a cost in clause excess of $50,000 individually or $250,000 in the aggregate in any calendar year;
(viiix) hereofany agreement containing covenants or other obligations granting or containing any current or future commitments regarding exclusive rights, non-competition, “most favored nations,” restriction on the operation or scope of its businesses or operations, or similar terms;
(xi) any agreement providing a customer with refund rights other than provisions contained in any agreement entered into in the ordinary course of business, consistent with past practice, on the Company’s standard form without material modification;
(xii) any dealer, distribution, marketing, development or joint venture agreement which requires payment by the Company in excess of $50,000 individually or $250,000 in the aggregate in any calendar year;
(xiii) any purchase order sales representative, original equipment manufacturer, manufacturing, value added, remarketer, distributor, reseller, or contract independent software vendor, or other agreement for the purchase use or distribution of materials involving $25,000 or more,any Company Product;
(xiv) any construction contracts,other contracts and licenses pursuant to which the Company has granted rights to any third party in any Company Product that involves payment to the Company in excess of $50,000 individually;
(xv) any distributioncontracts, joint marketing licenses and agreements to which the Company is a party with respect to any Content & Technology or development agreementIntellectual Property Rights, including any in-bound licenses, out-bound licenses and cross-licenses, but excluding (A) Shrink Wrap Code that is neither (1) incorporated into, or combined or distributed in conjunction with any Company Product, nor (2) used in connection with the development, support or maintenance of any Company Product, and (B) standard, end-user customer agreements entered in the ordinary course of business; or
(xvi) any other agreement, contract or commitment that involves requires payment by the Company in any calendar year in excess of $25,000 or more or 50,000 and is not cancelable by the Company without penalty within thirty ninety (3090) days.
(b) The Except as set forth in Section 2.15(b)(i) of the Disclosure Schedule, the Company is in compliance in all material respects with, and has not materially breached, violated or defaulted under, or received notice that it has materially breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Material Contract"), nor is does the Company or have any -------- Principal Shareholder aware Knowledge of any event that it understands would constitute such a material breach, violation or default with the lapse of time, giving of notice or both. Each Except as set forth in Section 2.15(b)(i) of the Disclosure Schedule, each Material Contract is in full force and effect effect, and the Company is not subject to any default thereunder by thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant theretoto any such Material Contract subject to any default thereunder. The Company has obtainedThere is no material dispute regarding any Material Contract, or the performance of any Material Contract, including with respect to payments to be made or received by the Company thereunder. Except as set forth in Section 2.15(b)(ii) of the Disclosure Schedule, no Material Contract will obtain prior to terminate, or may be terminated by either party, solely by the Closing Date, all necessary consents, waivers and approvals passage of parties to any Contract as are required thereunder in connection with time or at the Merger so that all such Contracts will remain in effect without modification election of either party within ninety (90) days after the Closing. To the Knowledge of the Company, no party to a Material Contract has provided the Company with notice of their intention to terminate such Material Contract with the Company or to materially reduce the volume of business such party conducts with the Company, whether as a result of the Merger or otherwise.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The As of the date hereof, except as set forth on Schedule 2.16(a), the Company does not have, or is not a party to nor is it bound by:
(ia) any collective bargaining agreement,agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(ivb) any employment or consulting agreement, contract or commitment with any officer, director, employee or member of the Company's Board of Directors, other than those that are terminable by the Company without liability of financial obligation of the Company;
(c) any employment or consulting agreement with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with under which a firm or other organization,organization provides services to the Company;
(vd) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(vie) any fidelity or surety bond or completion bond,;
(viif) any lease of personal property having a value individually in excess of $25,000,;
(viiig) any agreement of indemnification or guaranty, guaranty other than as set forth standard indemnification terms contained in agreements listed in Exhibit C, ---------contracts with resellers and distributors and licensees of the Company's products;
(ixh) any agreement, contract or commitment containing any covenant limiting in any respect the freedom right of the Company to engage in any line of business or to compete with any person,person or granting any exclusive distribution rights;
(xi) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments in excess of $25,000,;
(xij) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the Company after the date of this Agreement of a material amount of assets or any interest not in any business enterprise outside the ordinary course of business or pursuant to which the Company's business,Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiik) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viiih) hereof,;
(xiiil) any purchase order or contract for the purchase of materials involving $25,000 or more,;
(xivm) any construction contracts,;
(xvn) any dealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or development merchant agreement, or;
(xvio) any agreement pursuant to which the Company has granted or may be obligated to grant in the future, to any party a source-code license or option or other agreementright to use or acquire source-code, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.including any agreements which provide for source code escrow arrangements;
(bp) The any sales representative, original equipment manufacturer, value added, remarketer or other agreement for distribution of the Company's products or services or the products or services of any other person or entity;
(q) any agreement pursuant to which the Company has not breached, violated advanced or defaulted under, or received notice that it has breached, violated or defaulted under, loaned any amount to any shareholder of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware director, officer, employee or consultant other than business travel advances in the ordinary course of business consistent with past practice;
(r) any event settlement agreement entered into since January 1, 1996 that would constitute such a breach, violation or default with provides for continuing obligations of the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.Company; or
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Except as set ------------------------------------- forth on Schedule 2.12, the Company does not have, or is not a party to nor is it bound by:
(i1) any collective bargaining agreement,agreements.
(ii2) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,;
(iii3) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,;
(iv4) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organization,organization provides services to the Company.
(v5) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(vi6) any fidelity or surety bond or completion bond,;
(vii7) any lease of personal property having a value individually agreement, contract or commitment under which it has limited or restricted its right to compete with any person in excess of $25,000,any respect;
(viii) 8) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------;
(ix9) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,;
(x10) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,10,000;
(xi11) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,;
(xii12) any mortgages, indentures, loans or credit agreements, security agreements or other agreements arrangements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,;
(xiii13) any purchase order or contract for the purchase of raw materials involving $25,000 10,000 or more,;
(xiv) any construction contracts,
(xv14) any distribution, joint marketing or development agreement;
(15) any assignment, license or other agreement with respect to any form of intangible property, or,
(xvi16) any other agreement, contract or commitment that involves $25,000 10,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The . Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all of which are noted in Schedule 2.12, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a partybe set forth on Schedule 2.12, by which it benefits Schedule 2.11(a), or by which it is bound Schedule 2.11(b) (any such agreement, contract, license contract or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.12, is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. For purposes of this Section 2.16 “in the aggregate” shall refer to a series of related transactions with a single party or group of related parties. Except as set forth in Section 2.16 of the Disclosure Schedule (specifying the appropriate paragraph):
(a) The Neither Company does not havenor any of its Subsidiaries is a party to, or is not it bound by:
(i) any collective bargaining (1) employment, contractor or consulting agreement,
, (ii2) contract or commitment with an Employee or individual consultant, contractor, or salesperson, (3) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee to grant any severance or individual consultant termination pay (in cash or salesperson otherwise) to any Employee, or (4) any contractor, consulting or sales agreement, contract contract, or commitment with a firm or other organization,;
(vii) any agreement or plan, including, without limitation, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(viiii) any fidelity or surety bond or completion bond,;
(viiiv) any collective bargaining, union or works council agreements;
(v) any lease of personal property having a value individually in excess of $25,000,25,000 individually or $50,000 in the aggregate;
(viiivi) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------;
(ixvii) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreementContract, contract lease or commitment relating to capital expenditures and involving future payments in excess of $25,000,25,000 individually or $50,000 in the aggregate;
(xiviii) any agreement, contract or commitment relating to the disposition or acquisition of assets (whether tangible or intangible) or any interest in any business enterprise outside the ordinary course of the Company's ’s business,;
(xiiix) Company IP Agreements;
(x) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,;
(xiiixi) any purchase order or contract for the purchase of materials involving in excess of $25,000 50,000 individually or more,$100,000 in the aggregate;
(xii) any construction contracts;
(xiii) any dealer, distribution, strategic alliance, joint marketing, affiliate or development agreement;
(xiv) any construction contracts,agreement, contract or commitment to alter the Company’s interest in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(xv) any distribution, joint marketing or development agreement, orcontract or commitment pursuant to which the Company or any of its Subsidiaries has undertaken to, or pursuant to which the receipt of revenue is contingent upon, the delivery or provision of products, technology or service offerings not in commercial existence as of the date hereof, and specifically not contingent upon the release of any new product or new version of an existing Company Product;
(xvi) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for use, provision or distribution of the Company Products or other technology of the Company or any of its Subsidiaries; or
(xvii) any other agreement, contract contract, lease or commitment commitment, including, without limitation, or any service, operating or management agreement or arrangement with respect to any of the Leased Real Property, that involves $25,000 50,000 individually or $100,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) 30 days.
(b) Each Contract to which the Company or any of its Subsidiaries is a party or any of its properties or assets (whether tangible or intangible) is subject is a valid and binding agreement of the Company or any of its Subsidiaries enforceable against each of the parties thereto in accordance with its terms, and is in full force and effect with respect to the Company or any of its Subsidiaries and, to the Knowledge of the Company, any other party thereto. The Company is in compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor to the Knowledge of the Company is any party obligated to the Company or any -------- Principal Shareholder aware of its Subsidiaries pursuant to any event that would constitute such a Contract subject to any breach, violation or default thereunder, nor does the Company have Knowledge of any event that with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any both would constitute such a breach, violation or default thereunder by any party obligated to the Company or any of its Subsidiaries or any such other party. True and complete copies of each Contract disclosed in the Disclosure Schedule or required to be disclosed pursuant thereto. to this Section 2.16 (each a “Material Contract” and collectively, the “Material Contracts”) have been delivered or made available to Parent.
(c) The Company and each of its Subsidiaries has obtained, fulfilled all material obligations required pursuant to each Contract to have been performed by the Company or will obtain any of its Subsidiaries prior to the Closing Datedate hereof, and, without giving effect to the Merger, the Company will fulfill, when due, all necessary consents, waivers and approvals of parties its obligations under the Material Contracts that remain to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification be performed after the Closingdate hereof.
(d) All outstanding indebtedness of the Company or any of its Subsidiaries may be prepaid without penalty.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Advent Software Inc /De/)
Agreements, Contracts and Commitments. (a) The Company does not have, or is not bound by:
(i) any collective bargaining agreement,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or
(xvi) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not to the knowledge of the Principal Shareholders subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The except as set forth on Schedule 2.13(a), the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment agreement with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment agreement with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,00020,000,
(viii) any agreement of indemnification or guaranty, guaranty other than those substantially the same as set forth in the agreements listed in Exhibit C, ---------of indemnification or guarantees attached hereto as Schedule 2.13(a),
(ix) any agreement, contract or commitment agreement containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments in excess of $25,00050,000,
(xi) any agreement, contract or commitment agreement relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 20,000 or more,
(xiv) any construction contracts,
, (xv) any distribution, joint marketing or development agreement, or
(xvi) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.,
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Context Integration Inc)
Agreements, Contracts and Commitments. (a) The Schedule 3.16 sets forth each Contract to which the Company does not haveor any of its Subsidiaries is a party or by which they or their properties or assets are bound, or that is not bound byone of the following types of Contracts:
(i) any collective bargaining agreement,Contract;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,Employment Agreement;
(iii) any bonusbonus or any other incentive compensation, deferred compensation, severance, salary continuation, pension, profit sharing or retirement plansplan, or any other employee benefit plans plan or arrangements,arrangement, that is not listed on Schedule 3.25(a);
(iv) any employment or consulting agreement, contract or commitment commission and/or sales Contract with an employee or Employee, individual consultant or salesperson salesperson, or consulting or sales agreement, contract or commitment with under which a firm or other organization,organization provides commission or sales-based services to the Company or any Subsidiary, that is not listed on Schedule 3.26(b) or 3.26(c);
(v) any agreement Contract or plan, including, without limitation, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of the Merger or any of the other transactions contemplated by this Agreement and the Related Agreements or the value of any of the benefits of which will be calculated on the basis of the Merger or any of the other transactions contemplated by this Agreement,Agreement or the Related Agreements;
(vi) any fidelity or surety bond or completion bond,;
(vii) any lease of personal property having a value individually in excess of $25,000,;
(viii) any agreement Contract of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------guaranty to any third party;
(ix) any agreement, contract or commitment Contract containing any covenant limiting the freedom of the Company or any of its Subsidiaries to engage in any line of business or in any geographic territory or to compete with any person,Person, or which grants to any Person any exclusivity to any geographic territory, any customer, or any product or service;
(x) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in excess of $25,000,25,000 in any individual case or $50,000 in the aggregate;
(xi) any agreement, contract or commitment Contract not already fully performed relating to the acquisition or disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,’s or any of its Subsidiaries’ business or any Contract relating to the acquisition of assets or any interest in any business enterprise;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments Contract relating to the borrowing of money or the extension of credit, including guaranties referred to in clause (viii) hereof,credit or evidencing any Debt or securing such Debt;
(xiii) any outstanding purchase order or contract (including for the purchase services) involving in excess of materials involving $25,000 in any individual case or more,$50,000 or more in the aggregate;
(xiv) any construction contracts,dealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or merchant Contract ;
(xv) any distributionContract pursuant to which the Company or any of its Subsidiaries has granted or may be obligated to grant in the future, joint marketing to any Person, a source-code license or development agreementoption or other right to use or acquire source code, orincluding any Contracts that provide for source code escrow arrangements;
(xvi) any sales representative, original equipment manufacturer, value added re-seller, re-marketer or other agreementContract for distribution of the Company’s or any of its Subsidiaries’ products or services, contract or the products or services of any other Person;
(xvii) any Contract pursuant to which the Company or any of its Subsidiaries has advanced or loaned any amount to any Stockholder of the Company or any Employee or consultant thereof or any of its Subsidiaries, other than business travel advances in the ordinary course of business consistent with past practice;
(xviii) any joint venture, partnership, strategic alliance or other Contract involving the sharing of profits, losses, costs or liabilities with any Person or any development, data-sharing, marketing, resale, distribution or similar arrangement relating to any product or service;
(xix) any Contract with any Person to provide or deliver any product or service, or to support or maintain any product or service, on, in conjunction with or interoperating with any third party product, service or platform (a “Third Party Platform”), which Third Party Platform is not currently fully interoperable with such product or service or with respect to which the Company or any of its Subsidiaries must undertake any efforts to be so fully interoperable, and each commitment to develop, improve or customize any product or service;
(xx) each proposed Contract as to which any bid, offer, written proposal, term sheet or similar document has been submitted by or received by the Company or any of its Subsidiaries that, if accepted by the receiving party, would obligate the Company or any of its Subsidiaries thereunder; or
(xxi) any other Contract that involves $25,000 or more or is not cancelable without penalty within thirty upon sixty (3060) daysdays notice or less.
(b) Each Contract set forth or required to be set forth on Schedule 3.16 is in full force and effect and is valid, binding and enforceable in accordance with its terms and neither the Company nor any of its Subsidiaries is in default thereunder, nor to the knowledge of the Company is any party obligated to the Company or any of its Subsidiaries pursuant to any such Contract in default thereunder. The Company has and each of its Subsidiaries are in compliance with and have not breached, violated or defaulted under, or received notice that it has they have breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is does the Company or any -------- Principal Shareholder aware have knowledge of any event or occurrence that would reasonably be expected to constitute such a breach, violation or default (with or without the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder by any party obligated to the Company pursuant thereto). The Company has obtaineddelivered to Parent accurate and complete copies of all Contracts required to be set forth on Schedule 3.16, or will obtain prior to the Closing Date, including all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closingamendments thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Except as set forth on Schedule 2.12(a) , the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organizationorganization provides services to the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,0005,000 individually or $10,000 in the aggregate,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,0005,000 individually or $10,000 in the aggregate,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's businessenterprise,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials and/or supplies involving $25,000 20,000 or more,
(xiv) any construction contracts,
(xv) any dealer, distribution, joint marketing or development agreement,
(xvi) any sales representative, original equipment manufacturer, value added, remarketer, reseller or independent software vendor or other agreement for use or distribution of the Company's products, technology or services,
(xvii) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code,
(xviii) any agreement providing or requiring the repurchase of any of the Company's Capital Stock; or
(xvixix) any other agreement, contract or commitment that involves $25,000 5,000 individually or $10,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) days.
(b) The Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 2.12(b) , the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on Schedules 2.2(a), 2.9, 2.10(a), 2.11(n), 2.11(p), and/or 2.12(a) , or any other agreement, contract, license license, or commitment to which it is a party, by which it benefits or by which it is bound binding upon the Company (any such agreement, contract, or license or commitment, herein referred to as a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.12(b) , is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Cypress Semiconductor Corp /De/)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company (including its subsidiaries) (collectively, the “Material Contracts”). The Company is not required to list in Section 2.12(a) of the Company Schedule any Contract listed in Section 2.11(n) of the Company Schedule. Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreement,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,;
(viiii) any lease of real or personal property having a value individually involving future payments in excess of $25,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------Section 2.10(a) of the Company Schedule;
(ixiii) any agreement of indemnification, warranty, guaranty or suretyship or otherwise obligating the Company or any subsidiary to assume or incur any obligation or liability of a third party not listed on Section 2.11(o) of the Company Schedule;
(iv) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,;
(xv) any agreement, contract or commitment relating to capital expenditures and or involving future payments in excess of $25,000,20,000 in any single year or in any specific circumstance;
(xivi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets assets, properties or any interest in any business enterprise enterprise, in each case outside of the ordinary course of the Company's ’s business,;
(xiivii) any mortgagesmortgage, indenturesindenture, loans loan or credit agreementsagreement, security agreements agreement or other agreements agreement or instruments instrument relating to the borrowing of money or extension of creditcredit other than the CapitalSource Debt, including guaranties or instruments of surety referred to in clause subparagraph (i) above;
(viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $25,000 20,000 or more,, other than purchases in the ordinary course of business;
(xivix) any construction contracts,;
(xvx) any distribution, joint marketing marketing, licensing or joint development agreement other than sales agreements with customers of the Company entered into in the ordinary course of business on the Company’s standard form sales agreement as provided to Parent prior to the date hereof;
(xi) any consulting agreement, contract or commitment with an individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization, other than sales agreements with customers of the Company entered into in the ordinary course of business on the Company’s standard form sales agreement as provided to Parent prior to the date hereof; or
(xvixii) any other agreement, contract or commitment that involves or could result in aggregate payments to or by the Company of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) days.
(b) The None of the Company or any of its subsidiaries has not materially breached, violated or defaulted under, or received written notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits party or by which it is or its assets or properties are or may be bound (any such agreement, contract, license or commitment, a "“Contract"”), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any breach, default or violation thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. Section 2.12(b) of the Company Schedule sets forth a list of any Contract listed on Section 2.12(a), 2.11(n) or 2.10 or other material Contract that requires any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement or the consummation of the transactions contemplated hereby or thereby. The Company has obtained, or will use all commercially reasonable efforts to obtain prior to the Closing DateEffective Time, all necessary consents, waivers and approvals of parties to any Contract (including the Material Contracts) as are required thereunder to obtain in connection with the Merger so that all such Contracts will remain and the other transactions contemplated hereby and by the Ancillary Agreements in effect order to avoid any conflict with, any violation of, or default under (with or without modification after notice or lapse of time, or both), or to avoid giving rise to any right of termination, cancellation or acceleration of any obligation or loss of any benefit under, any Contract (the Closing“Requisite Consents”).
Appears in 1 contract
Sources: Merger Agreement (Valueclick Inc/Ca)
Agreements, Contracts and Commitments. (a) The Section 2.13(a) of the Company does not haveDisclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (each, or is not bound by:
a “Company Material Contract” and collectively, the “Company Material Contracts”): (i) a Company Contract, other than a Company Employee Plan, requiring payments by the Company after the date of this Agreement in excess of $125,000 per year pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any collective bargaining agreement,
Person, including any employee, consultant or independent contractor, or entity providing employment-related, consulting or independent contractor services, not terminable by the Company on 90 calendar days’ or less notice without liability, except to the extent general principles of wrongful termination law may limit the Company’s ability to terminate employees at will; (ii) any agreements a Company Contract, other than the Company Employee Plans or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonusthe Company Stock Plan, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) relating to any agreement or plan, including, without limitation, including any stock option plan, stock appreciation rights right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement Contemplated Transactions (either alone or in conjunction with any other event, such as termination of employment), 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,
Contemplated Transactions; 20 Exhibit 2.1 (viiii) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viii) Company Contract relating to any agreement of indemnification or guaranty, other than as set forth guaranty not entered into in agreements listed in Exhibit C, ---------
the Ordinary Course of Business; (ixiv) any agreement, contract or commitment a Company Contract containing (A) any covenant limiting the freedom of the Company or the Surviving Corporation to engage in any line of business or to compete with any person,
Person, (xB) any agreementmost-favored pricing arrangement, contract (C) any exclusivity provision, or commitment (D) any non-solicitation provision with respect to employees; (v) a Company Contract relating to capital expenditures and involving future requiring payments after the date of this Agreement in excess of $25,000,
250,000 pursuant to its express terms and not cancelable without penalty; (xivi) any agreement, contract or commitment a Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any business enterprise outside the ordinary course of Entity since the Company's business,
’s incorporation; (xiivii) a Company Contract relating to any mortgages, indentures, loans loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred credit in excess of $250,000 or creating any material Encumbrances with respect to in clause any assets of the Company or any loans or debt obligations with officers or directors of the Company; (viii) hereof,
a Company Contract requiring payment by or to the Company after the date of this Agreement in excess of $250,000 pursuant to its express terms relating to: (xiiiA) any purchase order or contract for the purchase of materials involving $25,000 or more,
distribution agreement (xividentifying any that contain exclusivity provisions); (B) any construction contracts,
agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company; (xvC) any distributiondealer, distributor, joint marketing marketing, alliance, joint venture, cooperation, development or development agreementother agreement currently in force under which the Company has continuing obligations to develop or market any product, or
technology or service, or any agreement pursuant to which the Company has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by the Company; or (xviD) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any Contract to sell, distribute or commercialize any products or service of the Company, in each case, except for Company Contracts entered into in the Ordinary Course of Business; (ix) a Company Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with the Contemplated Transactions; (x) a Company Real Estate Lease; or (xi) any other Company Contract that is not terminable at will (with no penalty or payment) by the Company, and (A) which involves payment or receipt by the Company after the date of this Agreement under any such agreement, contract or commitment of more than $250,000 in the aggregate, or obligations after the date of this Agreement in excess of $250,000 in the aggregate, or (B) that involves $25,000 is material to the business or more or is not cancelable without penalty within thirty (30) days.operations of the Company. 21 Exhibit 2.1
(b) The Company has made available to Apricus accurate and complete copies of all Company Material Contracts, including all amendments thereto. Except as set forth in Section 2.13(b) of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. The Company has not, and to the Company’s Knowledge, as of the date of this Agreement no other party to a Company Material Contract has, breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license Company Material Contract in such manner as would permit any other party to cancel or commitment to which it is a party, by which it benefits or by which it is bound (terminate any such agreementCompany Material Contract, contractor would permit any other party to seek damages which would reasonably be expected to have a Company Material Adverse Effect. As to the Company, license or commitmentas of the date of this Agreement, a "Contract"), nor is the each Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Material Contract is valid, binding, enforceable and in full force and effect and is not effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any default thereunder by Company Material Contract to change, any party obligated material amount paid or payable to the Company pursuant thereto. The under any Company has obtained, Material Contract or will obtain prior to the Closing Date, all necessary consents, waivers and approvals any other material term or provision of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the ClosingCompany Material Contract.
Appears in 1 contract
Sources: Merger Agreement
Agreements, Contracts and Commitments. (a) The Except as set forth on Schedule 2.12(a), the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organizationorganization provides services to the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000100,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000100,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 100,000 or moremore to be incurred by the Company following the date of this Agreement,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement,
(xvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or
(xvixvii) any other agreement, contract or commitment that involves $25,000 100,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The To the knowledge of the Company, except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 2.12(b), the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits be set forth on Schedule 2.12(a) or by which it is bound Schedule 2.11(g) (any such agreement, contract, license contract or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.a
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Except as set forth on Schedule 2.12(a), the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreement,agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,;
(iv) any employment or consulting agreement, agreement or contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreementagreement or contract, contract or commitment with under which a firm or other organization,organization provides services to the Company pursuant to which the Company is obligated to make payments in excess of $25,000 per year;
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(vi) any fidelity or surety bond or completion bond,;
(vii) any lease of personal property having a value individually in excess of $25,000,;
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,;
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,25,000 individually or $50,000 in the aggregate;
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,;
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 or more,;
(xiv) any construction contracts,contract;
(xv) any material distribution, joint marketing or development agreement;
(xvi) any agreement, contract or commitment pursuant to which the Company has granted or may grant in the future, to any party a source-code license or option or other right to use or acquire source-code; or
(xvixvii) any other agreement, contract or commitment that involves $25,000 50,000 or more or is not cancelable without penalty within thirty (30) days.
(b. Schedule 2.12(a) The sets forth a list of the Company's top 15 customers according to revenue for the fiscal year ended March 31, 1999, and each customer with which the Company currently has an agreement that the Company in good faith expects to be one of the Company's top 15 customers for the fiscal year ending March 31, 2000, and a list of all effective agreements between such customer and the Company. Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all of which are noted in Schedule 2.12(b), the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits be set forth on Schedule 2.12(a) or by which it is bound Schedule 2.11(b) (any such agreement, contract, license contract or commitment, a "ContractCONTRACT"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.12(b), is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Company Except as set forth on Schedule 7.1.12, Transferor does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,0005,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Transferor to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,0005,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in any business enterprise outside the ordinary course of the Company's businessBusiness,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 10,000 or moremore other than purchases in the ordinary course of business,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or
(xvi) any other agreement, contract or commitment that involves $25,000 5,000 or more or and is not cancelable without penalty within thirty (30) days.
(bxvii) The Company Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all as noted in Schedule 7.1.12, Transferor has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment to which it is a party, by which it benefits party or by which it is bound and which are required to be set forth in Schedule 7.1.12 (any such agreement, contract, license contract or commitment, a "ContractCONTRACT")) except for breaches, nor is the Company violations or any -------- Principal Shareholder aware of any event defaults that would constitute such will not have a breach, violation or default with the lapse of time, giving of notice or bothMaterial Adverse Effect. Each Contract agreement, contract or commitment set forth in any of Transferor Schedules is in full force and effect and and, except as otherwise disclosed in Schedule 3.12(b), is not subject to any default thereunder of which Transferor has knowledge by any party obligated to the Company Transferor pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Purchase Agreement (Alternative Construction Company, Inc.)
Agreements, Contracts and Commitments. (a) The Company does not haveExcept as set forth in Schedule 2.16, or Seller is not a party to or bound by:
(i) any collective bargaining agreement,agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, incentive compensation, pension, profit profit-sharing or retirement plans, or any other employee benefit plans Seller Benefit Plans or arrangements,;
(iviii) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,not terminable by Seller on no more than 30 days' notice without liability;
(viv) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viiiv) any agreement of indemnification or guaranty, guaranty not entered into in the ordinary course of business other than as set forth in indemnification agreements listed in Exhibit C, ---------between Seller and any of its officers or directors;
(ixvi) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Seller to engage in any line of business or to compete with any person,;
(xvii) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $25,000,25,000 and not cancelable without penalty;
(xiviii) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company's business,business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiiix) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(x) any joint marketing, including guaranties referred to in clause sales or development agreement;
(viiixi) hereof,any distribution agreement (identifying any that contain exclusivity provisions);
(xii) any royalty agreement; or
(xiii) any purchase order or contract for the purchase of materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or
(xvi) any other agreement, contract or commitment that involves (excluding real and personal property leases) which involve payment by Seller under any such agreement, contract or commitment of $25,000 10,000 or more or is not cancelable without penalty within thirty (30) daysin the aggregate.
(b) The Company Schedule 2.16 contains a complete and correct list of all Seller Contracts (as defined below) which are valid and binding upon Seller and, to Seller's knowledge, any other party to said Seller Contract, whether written or oral. Neither Seller, nor to the knowledge of Seller, any other party to a Seller Contract (as defined below), has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions of any agreementof the agreements, contract, license contracts or commitment commitments to which it Seller is a party, by which it benefits party or by which it is bound of the type set forth in Schedule 2.16 or described in clauses (i) through (xiii) above (any such agreement, contract, license contract or commitment, a "Seller Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute ) in such a breach, violation manner as would permit any other party to cancel or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to terminate any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtainedsuch Seller Contract, or will obtain prior would permit any other party to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closingseek damages.
Appears in 1 contract
Sources: Merger Agreement (Vizacom Inc)
Agreements, Contracts and Commitments. (a) The Except as set forth in Exhibit C, the Company does not have, or is --------- not bound by:
(i) any collective bargaining agreement,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or
(xvi) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice receivednotice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in Exhibit C, is not subject to any default thereunder by any party obligated to --------- the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Company Except as set forth on Schedule 3.12(a), eGroups does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreement,agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,;
(iv) any material employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any material consulting or sales agreement, contract or commitment with a under which any firm or other organization,organization provides services to eGroups;
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(vi) any fidelity or surety bond or completion bond,;
(vii) any lease of personal property having a value individually in excess of $25,000,50,000;
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company eGroups to engage in any line of business or to compete with any person,;
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,50,000;
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's eGroups' business,;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,;
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 50,000 or more,;
(xiv) any construction contracts,;
(xv) any distribution, joint marketing or development agreement;
(xvi) any agreement pursuant to which eGroups has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code; or
(xvixvii) any other agreement, contract or commitment that involves $25,000 50,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 3.12(b), eGroups has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a partybe set forth on Schedule 3.12(a), by which it benefits Schedule 3.11(c) or by which it is bound Schedule 3.11(h) (any such agreement, contract, license contract or commitment, a "eGroups Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each eGroups Contract is in full force and effect and and, except as otherwise disclosed in Schedule 3.12(b), is not subject to any default thereunder of which eGroups has Knowledge by any party obligated to the Company eGroups pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Section 2.12(a) of the Company does not haveSchedule sets forth all contracts that are material to the business or operations of the Company and its subsidiaries (collectively, or is not bound bythe “Material Contracts”) as follows:
(i) any collective bargaining agreement,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,;
(viiii) any lease of real or personal property having a value individually involving future payments in excess of $25,000,
(viii) any agreement of indemnification or guaranty250,000 per year, other than as set forth in agreements listed in Exhibit C, ---------Section 2.10(a) of the Company Schedule;
(ixiii) any agreement of indemnification, warranty, guaranty or suretyship or otherwise obligating the Company or any subsidiary to assume or incur any obligation or liability of a third party, other than on the Company's standard form agreements in the form made available to Parent and other than any such agreement that is not reasonably likely to result in liability to the Company or any subsidiary in excess of $250,000;
(iv) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,;
(xv) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,250,000 in any single year or in any specific circumstance;
(xivi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of material assets or properties or any interest in any business enterprise enterprise, in each case outside of the ordinary course of the Company's business,;
(xiivii) any mortgagesmortgage, indenturesindenture, loans loan or credit agreementsagreement, security agreements agreement or other agreements agreement or instruments instrument relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in clause subparagraph (i) above;
(viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $25,000 250,000 or more,, other than purchases in the ordinary course of business;
(xiv) any construction contracts,
(xvix) any distribution, joint marketing marketing, licensing or development agreement, or;
(xvix) any consulting agreement, contract or commitment with an individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(xi) any other agreement, contract or commitment that involves requires on its face aggregate payments to or by the Company of $25,000 250,000 or more or and is not cancelable by the Company without penalty within thirty ninety (3090) days;
(xii) any contract between the Company or any of its subsidiaries and any Related Party.
(b) The None of the Company or any of its subsidiaries has not materially breached, violated or defaulted under, or received written or, to the knowledge of the Company, oral notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Material Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Material Contract is in full force and effect and is not subject to any breach, default or violation thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The .
(c) Section 2.12(c) of the Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals Schedules sets forth a list of parties to any Contract as are required thereunder listed in Section 2.12(a), 2.11(n) or 2.10 that requires any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement or the Merger so that all such Contracts will remain in effect without modification after consummation of the Closingtransactions consummated hereby or thereby.
Appears in 1 contract
Sources: Merger Agreement (Valueclick Inc/Ca)
Agreements, Contracts and Commitments. (a) The Except as contemplated by this Agreement or set forth on Schedule 2.16, the Company does not have, or is not a party to, nor is it bound by:: 17
(ia) any collective bargaining agreement,or similar agreement with any labor organization or employee association applicable to employees of the Company;
(iib) any agreements employment or arrangements consulting agreement, contract, written personnel policies or commitment with any officer, employee, or member of the Company’s Board of Directors, other than those that contain any severance pay or post-employment liabilities or obligations,are terminable at the will of the Company;
(iiic) any bonus, deferred compensation, pension, profit sharing, severance, change of control or retirement plans or agreements, or any other employee benefit plans or arrangements;
(d) any stock option or stock purchase plan or arrangement (other than the Option Plan), stock appreciation, bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,;
(ive) any employment or consulting agreement, contract or commitment agreement with an employee or individual consultant consultant, contractor or salesperson or consulting or sales agreement, contract or commitment with under which a firm or other organization,organization provides services to the Company;
(vf) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(vig) any fidelity or surety bond or completion bond,;
(viih) any agreement or group of related agreements for the lease of personal property having a value individually in excess of $25,000,20,000;
(viiii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------;
(ixj) any agreement, contract or commitment agreement containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,person or entity;
(xk) any agreement, contract or commitment agreement relating to the purchase of materials or capital expenditures and involving future payments in excess of $25,000,20,000;
(xil) any agreement, contract or commitment agreement relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary and usual course of the Company's ’s business,;
(xiim) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by the Company or extension of credit, including guaranties referred credit to in clause (viii) hereof,the Company;
(xiiin) any purchase order or contract for the purchase of raw materials involving $25,000 20,000 or more,;
(xivo) any agreement concerning confidentiality pursuant to which the Company has incurred confidentiality obligations;
(p) any construction contracts,;
(xvq) any dealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or development merchant agreement;
(r) any agreement pursuant to which the Company has granted or may grant in the future, to any party a source-code license or option or other right to use or acquire source-code, including any agreements which provide for source code escrow arrangements;
(s) any sales representative, original equipment manufacturer, value added, remarketer or other agreement for distribution of the Company’ s products or services, or the products or services of any other person or entity; 18
(t) any agreement pursuant to which the Company has advanced or loaned any amount to any stockholder of the Company or any director, officer, employee, or consultant other than business travel or vacation leave advances in the ordinary course of business consistent with past practice; or
(xviu) to the extent not reported on the Company Balance Sheet, any other agreement, contract or commitment agreement that involves $25,000 20,000 or more or is not cancelable without penalty within thirty (30) days.
(b) . The Company has not not, in any material respect, breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits be set forth on any Company Schedule relating to the representations and warranties set forth in Section 2.14 or by which it is bound on Schedule 2.16 (any such agreement, contract, license contract or commitment, a "“Contract"”), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder under such Contract by any party obligated to the Company pursuant theretoto the Contract. The Company has obtainedno present or future obligations to America Online, Inc. (“AOL”) under a certain letter agreement, dated April 19, 2000 and addressed from AOL to ▇▇▇▇▇ ▇▇▇▇▇▇ (the “Letter Agreement”), including, without limitation, any obligation to provide AOL most favored nation (or will obtain prior any other type of) pricing or terms on any present or future Company product or service. Notwithstanding the foregoing, in the event that AOL asserts any rights or obligations under the Letter Agreement, the Company shall not be deemed to have breached any of the Closing Daterepresentations and warranties set forth in the immediately preceding sentence unless (1) Parent and the Surviving Corporation notify the Securityholder Agent of such assertion by AOL as soon as practicable after such assertion, (2) the Company Stockholders, through the Securityholder Agent, are allowed, at their sole discretion and expense to contest and assume the defens e against such assertion and (3) AOL prevails in the assertion of such right or obligation. The Company is in compliance in all necessary consentsmaterial respects with all the terms, waivers conditions and approvals limitations of parties each version of the “RealSystem G2 SDK Agreement” agreed to any Contract as are required thereunder in connection with by the Merger so that all such Contracts will remain in effect without modification after the ClosingCompany through its acceptance of “clickwrap licenses” no earlier than March of 2000.
Appears in 1 contract
Sources: Merger Agreement (Inktomi Corp)
Agreements, Contracts and Commitments. (a) The Except as set forth in Section 2.11(a) of the Company Disclosure Schedule, each of the Company and its subsidiaries does not havehave continuing obligations under, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or pay, post-employment liabilities or obligationsobligations or "golden parachute" provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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, except as provided herein,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value annual lease payments individually in excess of $25,000,
(viii) any agreement of indemnification indemnification, warranty or guaranty, guaranty other than as set forth in agreements listed in Exhibit C, ---------the ordinary course of business,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00050,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in any business enterprise outside the ordinary course of the Company's business or any subsidiary's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or
(xvixiv) any agreement, contract or commitment with any customer or vendor which, during the last two fiscal years of the Company, accounted, or is expected to account during the Company's current fiscal year, for more than 5% of the Company's revenue or 10% of the Company's trade payables, as applicable.
(xv) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Except for any alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all as noted in Section 2.11(b) of the Company Disclosure Schedule, neither the Company nor any of its subsidiaries has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment to which it is a party, by which it benefits set forth in Section 2.10 or by which it is bound Section 2.11(a) of the Company Disclosure Schedule (any such agreement, contract, license or commitment, a "Company Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Company Contract is in ---------------- full force and effect and and, except as otherwise disclosed in Section 2.11(b) of the Company Disclosure Schedule, is not subject to any default thereunder of which the Company or any subsidiary is aware by any party obligated to the Company or any subsidiary pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Splash Technology Holdings Inc)
Agreements, Contracts and Commitments. (a) The Except as set forth in Exhibit C, the Company does not have, or is --------- not bound by:by (other than pursuant to applicable law):
(i) any collective bargaining agreement,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or
(xvi) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is does the Company or any -------- Principal Shareholder aware know of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in Exhibit C, is not not, to the knowledge of the Company or any Principal Shareholder, --------- subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Merger Agreement (Usweb Corp)
Agreements, Contracts and Commitments. (a) The Except as set forth on ------------------------------------- Schedule 2.12, as of the date hereof, the Company does not have, or is not a party to or bound by:
(ia) any collective bargaining agreementagreements,
(iib) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligationsobligations other than reasonable notice provisions of common law,
(iiic) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans plans, policies or arrangements,
(ivd) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(ve) any agreement or plan, including, without limitation, including any stock Shares option plan, stock Shares appreciation rights plan or stock plan, Shares purchase plan, or employee share option scheme, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vif) any fidelity or surety bond or completion bond,
(viig) any lease of personal property having a value individually in excess of $25,00010,000,
(viiih) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ixi) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any personperson or entity,
(xj) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00010,000, except as disclosed in Note 10 to the Company Financials,
(xik) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xiil) any mortgages, charges, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viiih) hereof,
(xiiim) any purchase order or contract for the purchase of raw materials involving $25,000 10,000 or more,
(xivn) any construction contracts,
(xvo) any distribution, joint marketing or development agreement,
(p) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source codes, or
(xviq) any other agreement, contract or commitment that involves $25,000 10,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The . Except for alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 2.12(b), the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment to which it the Company is a party, by which it benefits party or by which it is bound (any such agreement, contract, license contract or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full -------- force and effect and and, except as otherwise disclosed in Schedule 2.12(b), is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closingthereunder.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Company Except as set forth on Schedule 3.12(a), Seller does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,0005,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Seller to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,0005,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in any business enterprise outside the ordinary course of the CompanySeller's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 10,000 or moremore other than purchases in the ordinary course of business,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or
(xvi) any other agreement, contract or commitment that involves $25,000 5,000 or more or and is not cancelable without penalty within thirty (30) days.
(ba) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license contract or commitment, a "ContractCONTRACT")) except for breaches, nor is the Company violations or any -------- Principal Shareholder aware of any event defaults that would constitute such will not have a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.Material Adverse
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Fastcomm Communications Corp)
Agreements, Contracts and Commitments. (a) The As of the date of this Agreement, the Company does not have, or is not a party to nor is it bound by:
(ia) any collective bargaining agreementagreements,
(iib) any agreements or arrangements that contain any severance pay or similar post-employment liabilities or obligations,
(iiic) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(ivd) any employment or consulting agreement, contract or commitment agreement with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment agreement with a firm or other organization,, other
(ve) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vif) any fidelity or surety bond or completion bond,
(viig) any lease of personal property having a value individually involving annual payments by the Company in any individual case in excess of $25,000100,000, or in the aggregate in excess of $250,000,
(viiih) any agreement of indemnification or guaranty, guaranty other than as set forth in agreements listed in Exhibit Cpursuant to the Company's standard end-user license agreement, ---------which is attached to the disclosure schedule,
(ixi) any agreement, contract or commitment agreement containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(xj) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments required to be made by the Company after the date of this Agreement in excess of $25,000250,000,
(xik) any agreement, contract or commitment agreement relating to the disposition or acquisition by the Company after the date of this Agreement of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xiil) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by or extension of creditcredit by or to the Company, including guaranties referred to in clause (viii) hereof,
(xiiim) any purchase order or contract for the purchase of raw materials (not including in-license of technology) involving $25,000 5,000 or more,
(xivn) any construction contracts,
(xvo) any distribution, joint marketing or development agreementagreement which cannot be canceled without penalty upon notice of sixty (60) days or less,
(p) any agreement pursuant to which the Company has granted or is required to grant in the future, to any party a source-code license or option or other right to use or acquire source-code, or
(xviq) any other agreement, contract or commitment agreement that involves payments by the Company of $25,000 100,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Critical Path Inc)
Agreements, Contracts and Commitments. (a) The Except as set forth on Schedule ------------------------------------- 2.12(a), the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organizationorganization provides services to the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,00010,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00010,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 10,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement,
(xvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire, contingent or otherwise, source-code, or
(xvixvii) any other agreement, contract or commitment that involves $25,000 10,000 or more or is not cancelable without penalty within thirty (30) days.
(b) . The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment to which it is a party, by which it benefits or by which it is bound (including those set forth in any of the Company Schedules) (any such agreement, contract, license contract or commitment, a "Contract"), nor is the Company or ) in any -------- Principal Shareholder aware of any event that would constitute such manner which could reasonably be expected to have a breach, violation or default with the lapse of time, giving of notice or bothMaterial Adverse Effect. Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Company Except as set forth on Schedule 3.12(a), Parent does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organizationorganization provides services to Parent,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Parent to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the CompanyParent's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement,
(xvi) any agreement pursuant to which Parent has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or
(xvixvii) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company . Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 3.12(b), Parent has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits be set forth on Schedule 3.12(a) or by which it is bound Schedule 3.11(b) (any such agreement, contract, license contract or commitment, a "ContractPARENT CONTRACT"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Parent Contract is in full force and effect and and, except as otherwise disclosed in Schedule 3.12(b), is not subject to any default thereunder of which Parent has Knowledge by any party obligated to the Company Parent pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Merger Agreement (Healtheon Corp)
Agreements, Contracts and Commitments. (a) The Except as set forth on SCHEDULE 2.12(a), the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreement,agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,;
(iv) any employment or consulting agreement, agreement or contract or commitment with an employee or individual consultant or salesperson or consulting agreement or sales agreementcontract, contract or commitment with under which a firm or other organization,organization provides services to the Company pursuant to which the Company is obligated to make payments in excess of $30,000 per year;
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(vi) any fidelity or surety bond or completion bond,;
(vii) any lease of personal property having a value individually in excess of $25,000,30,000;
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,;
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,25,000 individually or $40,000 in the aggregate;
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,;
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 35,000 or more,;
(xiv) any construction contracts,contract;
(xv) any material distribution, joint marketing or development agreement;
(xvi) any agreement, contract or commitment pursuant to which the Company has granted or may grant in the future, to any party a source-code license or option or other right to use or acquire source-code; or
(xvixvii) any other agreement, contract or commitment that involves $25,000 35,000 or more or is not cancelable without penalty within thirty (30) days.
(b. SCHEDULE 2.12(a) The sets forth a list of the Company's top 15 customers according to revenue for the fiscal year ended December 31, 1998, and each customer with which the Company currently has an agreement that the Company in good faith expects to be one of the Company's top 15 customers for the fiscal year ending December 31, 1999, and a list of all effective agreements between such customer and the Company. Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all of which are noted in SCHEDULE 2.12(b), the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits be set forth on SCHEDULE 2.12(a) or by which it is bound SCHEDULE 2.11(b) (any such agreement, contract, license contract or commitment, a "ContractCONTRACT"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in SCHEDULE 2.12(b), is not subject to any material default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The SCHEDULE 2.12(c) lists all contracts, licenses and agreements between the Company and any other person wherein the Company has obtainedagreed to, or will obtain prior assumed, any material obligation or material duty to warrant, indemnify, reimburse, hold harmless, guaranty or otherwise assume or incur any material obligation or liability or provide a right of rescission with respect to the Closing Dateinfringement or misappropriation by the Company or such other person of the intellectual property of any person or entity other than the Company. To the extent that the products currently offered by the Company record, all necessary consentsstore, waivers process, calculate or present calendar dates falling on and approvals after (and if applicable, spans of parties time including) January 1, 2000, they do so accurately and calculate any information dependent on or relating to any Contract as are required thereunder such dates in connection the same manner, and with the Merger so that all same functionality, data integrity and performance, as the products record, store, process, calculate and present calendar dates on or before December 31, 1999, or calculate any information dependent on or relating to such Contracts dates (collectively, "YEAR 2000 COMPLIANT"). All of the products currently offered by the Company (i) will remain in effect without modification lose no functionality with respect to the introduction of records containing dates falling on or after January 1, 2000. All of the ClosingCompany's internal computer and technology products and systems are Year 2000 Compliant.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Company does not haveExcept as set forth in Section 3.28 of the Parent Disclosure Schedule, neither Parent nor any of its subsidiaries is a party to or is not bound by:
(i) any collective bargaining agreement,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iiia) any bonus, deferred compensation, severance, incentive compensation, pension, profit profit-sharing or retirement plans, or any other employee benefit plans or arrangements,;
(ivb) any employment or consulting agreement, contract or commitment with an employee any officer or individual consultant director level employee, not terminable by Parent or salesperson any of its subsidiaries on thirty (30) days notice without liability, except to the extent general principles of wrongful termination law may limit Parent's or consulting or sales agreement, contract or commitment with a firm or other organization,any of its subsidiaries' ability to terminate employees at will;
(vc) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viiid) any agreement of indemnification or guaranty, guaranty not entered into in the ordinary course of business other than as set forth in indemnification agreements listed in Exhibit C, ---------between Parent or any of its subsidiaries and any of its officers or directors;
(ixe) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Parent or any of its subsidiaries to engage in any line of business or to compete with any person,;
(xf) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $25,000,50,000 and not cancelable without penalty;
(xig) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company's business,business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiih) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,;
(xiiii) any purchase order or contract for the purchase of materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, ;
(j) any distribution agreement (identifying any that contain exclusivity provisions); or
(xvik) any other agreement, contract or commitment that involves (excluding real and personal property leases) which involve payment by Parent or any of its subsidiaries under any such agreement, contract or commitment of $25,000 50,000 or more or in the aggregate and is not cancelable without penalty within thirty (30) days.
. Neither Parent nor any of its subsidiaries, nor to Parent's knowledge any other party to a Parent Contract (b) The Company as defined below), has not materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreementof the agreements, contract, license contracts or commitment commitments to which it Parent is a party, by which it benefits party or by which it is bound of the type described in clauses (a) through (k) above (any such agreement, contract, license contract or commitment, a "Parent Contract")) in such manner as would permit any other party to cancel or terminate any such Raven Contract, nor is the Company or would permit any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or bothother party to seek damages. Each Parent Contract is valid, binding, enforceable and in full force and effect and is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closingeffect.
Appears in 1 contract
Sources: Merger Agreement (Vaxgen Inc)
Agreements, Contracts and Commitments. (a) The Except as set forth on SCHEDULE 2.13(a) or as specifically set forth in the Company Financials (including the notes thereto), the Company does not have, or is not a party to and is not bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organizationorganization provides services to the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viiivii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ixviii) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(xix) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(xix) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xiixi) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereofguaranties,
(xiii) any purchase order or contract for the purchase of materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or
(xvixii) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits be set forth on SCHEDULE 2.13(a) or by which it is bound SCHEDULE 2.12(b) (any such agreement, contract, license contract or commitment, a "ContractCONTRACT"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any material default thereunder thereunder, of which the Company has knowledge, by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to Following the Closing Date, the Company will be permitted to exercise all necessary consentsof the Company's rights under the Contracts without the payment of any additional amounts or consideration other than ongoing fees, waivers and approvals of parties royalties or payments which the Company would otherwise be required to any Contract as are required thereunder in connection with pay had the Merger so that all such Contracts will remain in effect without modification after the Closingtransactions contemplated by this Agreement not occurred.
Appears in 1 contract
Sources: Stock Exchange Agreement (Jenkon International Inc)
Agreements, Contracts and Commitments. (a) The Except as set forth in Exhibit C, the Company does not have, or is --------- not bound by:
(i) any collective bargaining agreement,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, -------------------
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or
(xvi) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in Exhibit C, is not subject to any default thereunder by any party obligated --------- to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. Except for Employee Plans (a) The as defined in Section 2.21), as contemplated by this Agreement or as set forth on Schedule 2.12, the Company does not have, or have and is not bound bya party to:
(ia) any collective bargaining agreement,;
(iib) any agreements or arrangements that contain any unpaid severance pay or post-employment liabilities or obligations,;
(iiic) any bonus, deferred compensation, incentive compensation, pension, profit profit- sharing or retirement plans, or any other employee benefit plans or arrangements,;
(ivd) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,organization not terminable by the Company on 30 days' notice without liability except to the extent applicable local law and/or general principles of wrongful termination law may limit the Company's ability to terminate such employees;
(ve) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(vif) any fidelity or surety bond or completion bond,;
(viig) any lease of personal property having a value individually in excess of $25,000,property;
(viiih) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------;
(ixi) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,;
(xj) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,obligations;
(xik) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company's business,business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiil) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viiih) hereof,;
(xiiim) any purchase order or contract for the purchase of raw materials involving $25,000 or more,acquisition of assets;
(xivn) any construction contracts,;
(xvo) any distribution, joint marketing or development agreement, ; or
(xvip) any other agreement, contract or commitment that which involves $25,000 5,000 or more or and is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Epic Design Technology Inc /Ca/)
Agreements, Contracts and Commitments. (a) The Except as set forth in Section 2.15 of the Disclosure Schedule (specifying the appropriate subparagraph), the Company does not have, or is not a party to, nor is it bound by:by any of the following (each, a “Material Contract”):
(i) any collective bargaining agreement,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonusemployment, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment contractor or consulting agreement, contract or commitment with an employee or individual consultant consultant, contractor or salesperson salesperson, or consulting consulting, services or sales agreement, contract contract, or commitment with a firm or other organization,that is not terminable by the Company at will and without penalty;
(vii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional subsequent events) 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,;
(viiii) any fidelity or surety bond or completion bond,;
(viiiv) any lease of personal property or equipment having a value individually in excess of $25,000,50,000 individually or $250,000 in the aggregate;
(viiiv) any agreement of indemnification or guaranty, other than as set forth but excluding agreements of indemnification or guaranty with respect to the infringement by the Company products of the Intellectual Property Rights of third parties that are contained in the Company’s written agreements listed with its distributors and resellers that have been entered into in Exhibit Cthe ordinary course of business, ---------consistent with past practices, substantially in the Company’s standard form of distributor or reseller agreement;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(xvi) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,50,000 individually or $250,000 in the aggregate;
(xivii) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,, consistent with past practices;
(xiiviii) any mortgages, indentures, guaranties, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(ix) any purchase order, including guaranties referred contract or other commitment obligating the Company to purchase materials or services at a cost in clause excess of $50,000 individually or $250,000 in the aggregate;
(viiix) hereofany agreement containing covenants or other obligations granting or containing any current or future commitments regarding exclusive rights, non-competition, “most favored nations,” restriction on the operation or scope of its businesses or operations, or similar terms;
(xi) any agreement providing a customer with refund rights;
(xii) any dealer, distribution, marketing, development or joint venture agreement which requires payment in excess of $50,000 individually or $250,000 in the aggregate;
(xiii) any purchase order sales representative, original equipment manufacturer, manufacturing, value added, remarketer, distributor, reseller, or contract independent software vendor, or other agreement for use or distribution of the purchase products, technology or services of materials involving $25,000 or more,the Company;
(xiv) any construction contracts,contracts and licenses, including out-bound licenses with respect to the Company’s products, other than agreements with the Company’s distributors and resellers that have been entered into in the ordinary course of business, consistent with past practices, in the Company’s standard form of distributor or reseller contract (as set forth in Exhibit F hereof);
(xv) any distributioncontracts, joint marketing licenses and agreements to which the Company is a party with respect to any Technology or development agreementIntellectual Property Rights (other than Shrink Wrap Code that is neither (A) incorporated into, or combined or distributed in conjunction with any Company Product, nor (B) used in connection with the development, support or maintenance of any Company Product), including without limitation any in-bound licenses, out-bound licenses and cross-licenses; or
(xvi) any other agreement, contract or commitment that involves $25,000 50,000 individually or $250,000 in the aggregate or more or and is not cancelable by the Company without penalty within thirty ninety (3090) days.
(b) The Except as set forth in Section 2.15(b)(i) of the Disclosure Schedule, the Company is in compliance in all material respects with, and has not materially breached, violated or defaulted under, or received notice that it has materially breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Material Contract"), nor is does the Company or have any -------- Principal Shareholder aware Knowledge of any event that would constitute such a material breach, violation or default with the lapse of time, giving of notice or both. Each Except as set forth in Section 2.15(b)(i) of the Disclosure Schedule, each Material Contract is in full force and effect effect, and the Company is not subject to any default thereunder by thereunder, nor to the Knowledge of the Company is any party obligated to the Company pursuant theretoto any such Material Contract subject to any default thereunder. The Company has obtainedThere is no dispute regarding any Material Contract, or the performance of any Material Contract, including with respect to payments to be made or received by the Company thereunder. Except as set forth in Section 2.15(b)(ii) of the Disclosure Schedule, no Material Contract will obtain prior to terminate, or may be terminated by either party, solely by the Closing Date, all necessary consents, waivers and approvals passage of parties to any Contract as are required thereunder in connection with time or at the Merger so that all such Contracts will remain in effect without modification election of either party within one hundred twenty (120) days after the Closing. To the Knowledge of the Company, and after due inquiry of the individuals set forth on Schedule 2.15(b)(iii), no party to a Material Contract has any intention of terminating such Material Contract with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger or otherwise.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The As of the date of this Agreement, neither the Company does not havenor any of its Subsidiaries is a party to, or is not bound by:
(i) any collective bargaining agreement,agreement under which the consequences of a default or termination would reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries, as a whole;
(ii) any agreements agreement containing a “most favored nation” pricing clause granted by the Company or arrangements that contain any severance pay or post-employment liabilities or obligations,of its Subsidiaries;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plansagreement providing for, or any containing provisions related to, indemnification, contribution or guaranties other employee benefit plans than agreements entered into in the ordinary course of business in connection with the sale of goods or arrangements,services;
(iv) except for the establishment and implementation of the Company Severance Plan, the Parent Severance Plan, the Retention Plan and the Escrow Payment Plan and the payment of severance or other benefits pursuant to Section 5.13 or pursuant to the Change of Control Letter Agreements, any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson other than agreements, contracts or consulting commitments that provide for “at will” employment and do not contain provisions related to bonus, severance or sales agreement, contract similar termination pay or commitment with a firm or other organization,change of control benefits;
(v) except for the establishment and implementation of the Company Severance Plan, the Parent Severance Plan, the Retention Plan and the Escrow Payment Plan and the payment of severance or other benefits pursuant to Section 5.13 or pursuant to the Change of Control Letter Agreements, any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, solely 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,;
(vi) any fidelity or surety bond or completion bond,;
(vii) any lease of personal property having a value individually in excess of $25,000,10,000 individually or, with respect to the Company and its Subsidiaries as a whole, $25,000 in the aggregate;
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,50,000 individually or, with respect to the Company and its Subsidiaries as a whole, $100,000 in the aggregate;
(xiix) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,’s and its Subsidiaries’ business consistent with past practices;
(xiix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to providing for the borrowing of money or extension of credit;
(xi) distribution, including guaranties referred to in clause joint marketing, joint venture or development agreement;
(viiixii) hereof,any sales representative, original equipment manufacturer, value added, remarketer, reseller, or independent software vendor agreement; or
(xiii) any purchase order or contract for the purchase of materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or
(xvi) any other agreement, contract or commitment that involves $15,000 individually or, with respect to the Company and its Subsidiaries as a whole, $25,000 in the aggregate or more or and which is not cancelable without penalty within upon less than thirty (30) days’ notice.
(b) The Company has not delivered to Parent or its representatives a correct and complete copy of each written agreement (as amended through the date of this Agreement) listed in Section 2.13(h) or 2.14(a) of the Disclosure Schedule. Except for such breaches, violations and defaults, and events that would constitute a breach, violation or default solely with the lapse of time, giving of notice or both, as are all set forth in Section 2.14(b) of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits be set forth in Section 2.14(a) of the Disclosure Schedule or by which it is bound Section 2.13(h) of the Disclosure Schedule (any such agreement, contract, license contract or commitment, a "“Listed Contract"”). Except for written amendments (or oral amendments described in written summaries) provided to Parent or its representatives or otherwise made available in the data room at the offices of counsel to Parent, nor is there does not exist any agreement, contract or other arrangement entered into by or on behalf of the Company or any -------- Principal Shareholder aware that alters the terms of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or bothListed Contract. Each Listed Contract is in full force and effect and is not (except as such enforceability may be subject to the laws of general application relating to bankruptcy, insolvency, and the relief of debtors and rules of law governing specific performance, injunctive relief, or other equitable remedies) and, except as otherwise disclosed in Section 2.14(b) of the Disclosure Schedule the Company has no Knowledge of any default breach thereunder by any party obligated to the Company or any of its Subsidiaries pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Except as set forth on Schedule 2.12(a), the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreement,agreements.
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,;
(iv) any employment or consulting agreement, contract or commitment (other than an oral offer of employment as an employee at will) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organization,organization provides services to the Company.
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(vi) any fidelity or surety bond or completion bond,;
(vii) any lease of personal property having a value individually in excess of $25,000,100,000;
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,;
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,100,000;
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements arrangements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,;
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 100,000 or more,;
(xiv) any construction contracts,;
(xv) any distribution, joint marketing or development agreement, or;
(xvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or,
(xvii) any other agreement, contract or commitment that involves future obligations of or payments to the Company of $25,000 100,000 or more more. Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or is not cancelable without penalty within thirty (30) days.
(b) The default with the lapse of time, giving of notice, or both, as are all noted in Schedule 2.12(b), the Company has not materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits be set forth on Schedule 2.12(a) or by which it is bound Schedule 2.11(b) (any such agreement, contract, license contract or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.12(b), is not subject to any material default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Corsair Communications Inc)
Agreements, Contracts and Commitments. (a) The As of the date hereof, the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organizationorganization provides services to the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal or real property having a value individually in excess of $25,00015,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and or involving future payments in excess of $25,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any sales representative, original equipment manufacturer, value added, remarketer, reseller or independent software vendor or other agreement for use of distribution of the Company's products, technologies or services;
(xvi) any distribution, joint marketing or development agreement,
(xvii) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code,
(xviii) any agreement pursuant to which the Company has developed and/or delivered or has received funds from any Governmental Entity to develop and/or deliver any Intellectual Property, or
(xvixix) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits be set forth on Part 2.12(a) of the Company Disclosure Letter or by which it is bound Part 2.11(g) of the Company Disclosure Letter (any such agreement, contract, license contract or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has Knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Goto Com Inc)
Agreements, Contracts and Commitments. (a) The Except as set forth on Schedule 2.12(a), the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment agreement with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with under which a firm or other organizationorganization provides services to the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000100,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment agreement containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments in excess of $25,000100,000,
(xi) any agreement, contract or commitment agreement relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or,
(xvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party a source-code license or option or other agreementright to use or acquire source-code, contract or commitment or
(xvii) any other agreement that involves $25,000 100,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The . Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 2.12(b), the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits be set forth on Schedule 2.12(a) or by which it is bound Schedule 2.11(b) (any such agreement, contract, license contract or commitment, a "ContractCONTRACT"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.12(b), is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Informix Corp)
Agreements, Contracts and Commitments. (a) The Company does Except as set forth in Schedule 3.12, each of Parent and Merger Sub do not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organizationorganization provides services to Parent or Merger Sub,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Parent or Merger Sub to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course with a value in excess of the Company's business$25,000,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or,
(xvi) any agreement pursuant to which Parent or Merger Sub has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code,
(xvii) any other agreement, contract or commitment that involves $25,000 or more or and is not cancelable without penalty within thirty (30) days,
(xviii) any licenses of intellectual property to or from any person, except for any commercial off-the-shelf software licenses, label licenses, “shrink wrap” or “click through” licenses or any other similar publicly available end user license agreements,
(xix) any agreement containing registration rights with respect to any of its securities or pursuant to which Parent may be obligated to register any securities,
(xx) any contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of Parent or requiring any payments or other distributions based on such profits, revenues or cash flows, or
(xxi) any contracts or agreements with any director, officer or material stockholder of Parent, or with any person related to any such person or with any company or other organization in which any director, officer, or material stockholder of Parent, or anyone related to any such person, has a direct or indirect financial interest (for purposes hereof, the term “material stockholder” shall mean any person or entity that owns, beneficially or of record, more than five percent (5%) of any class or series of Parent’s capital stock).
(b) The Company has Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 3.12(b), each of Parent and Merger Sub have not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits or by which it is bound be set forth on Schedule 3.12(a) and Schedule 3.11(b) (any such agreement, contract, license contract or commitment, a "“Contract"”), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in Schedule 3.12(b), is not subject to any default thereunder by any party obligated to the Company Parent or Merger Sub pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Except as set forth on Schedule 2.15(a), the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment agreement with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment agreement with a firm or other organization,
(v) any agreement or planplan (other than the Option Plan), including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,0005,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments in excess of $25,0005,000,
(xix) any agreement, contract or commitment agreement relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xiixi) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiiixii) any purchase order or contract for the purchase of raw materials involving $25,000 10,000 or more,
(xivxiii) any construction contracts,
(xvxiv) any distribution, joint marketing or development agreement,
(xv) any agreement pursuant to which the Company has granted to any party a license or option or other right to use or acquire (including contingent rights) source-code developed by the Company, or
(xvi) any other agreement, contract or commitment agreement that involves $25,000 20,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 2.15(b) or as would not, and would not be reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect on the Company, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits be set forth on Schedule 2.15(a) or by which it is bound Schedule 2.14(b) (any such agreement, contract, license contract or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each -------- Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.15(b), is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Summit Design Inc)
Agreements, Contracts and Commitments. (a) The Except as set forth in Section 2.17(a) of the Disclosure Schedule (specifying the appropriate subparagraph below), neither the Company does not havenor its Subsidiary is a party to, or is not bound by:
(i) any collective bargaining agreement,agreement for the distribution of Content to any Channel Outlet;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonusemployment, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment contractor or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales contractor, any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any employee, or any contractor or consulting agreement, contract, or commitment with a firm or other organization,;
(viii) any agreement or plan, including, without limitation, including any stock unit option plan, stock unit appreciation rights plan or stock unit purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(viiv) any fidelity or surety bond or completion bond,;
(viiv) any lease of personal property having a value individually in excess of $25,000,5,000 individually or $10,000 in the aggregate;
(viiivi) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------;
(ixvii) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in excess of $25,000,5,000 individually or $10,000 in the aggregate;
(xiviii) any agreement, contract or commitment Contract relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,;
(xiiix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,;
(xiiix) any purchase order or contract for the purchase of materials involving in excess of $25,000 5,000 individually or more,$10,000 in the aggregate;
(xivxi) any construction contracts,
(xv) any distributionjoint marketing, joint marketing strategic alliance, affiliate or development agreement, ; or
(xvixii) any other agreement, contract or commitment that involves $25,000 5,000 individually or $10,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) 30 days.
(b) The Each Contract to which the Company has or its Subsidiary is a party or any of their properties or assets (whether tangible or intangible) is subject is a valid and binding agreement of the Company or its Subsidiary, as applicable, enforceable against each of the parties thereto in accordance with its terms, assuming the due authorization, due execution and delivery of the other parties thereto, and is in full force and effect with respect to the Company or its Subsidiary, as applicable, and any other party thereto. Each of the Company and its Subsidiary are in compliance with and have not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreementsuch Contract, contractnor, license or commitment to which it the knowledge of the Company, is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is party obligated to the Company or its Subsidiary pursuant to any -------- Principal Shareholder aware of such Contract subject to any event that would constitute such a breach, violation or default thereunder, nor has there occurred any event that with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any both would constitute such a breach, violation or default thereunder by any party obligated the Company or its Subsidiary or, to the Company knowledge of the Company, any such other party. True and complete copies of each Contract disclosed in the Disclosure Schedule, including any Contract referenced in Section 2.16(d) of the Disclosure Schedule or required to be disclosed pursuant thereto. to this Section 2.17 (each a “Material Contract” and collectively, the “Material Contracts”) have been delivered or made available to Purchaser.
(c) The Company or its Subsidiary, as applicable, has obtained, fulfilled or will obtain have fulfilled all material obligations required to have been performed by the Company or its Subsidiary, as applicable, prior to the Closing Date, all necessary consents, waivers and approvals of parties Date pursuant to any each Contract as are required thereunder in connection with to which the Merger so that all such Contracts will remain in effect without modification after the ClosingCompany or its Subsidiary is a party or to which it is bound.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Except as set forth in this Agreement or at Section 3.17 of the Disclosure Schedule (specifying the appropriate paragraph), neither the Company does not havenor any of its Subsidiaries is a party to, or is not bound by:
(i) any collective bargaining agreement,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or other benefits not disclosed in Section 3.17(b) of the Disclosure Schedule), any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any employee, or any consulting or sales agreement, contract contract, or commitment with a firm or other organization,;
(vii) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase planplan (A) relating to the sale, issuance, grant, exercise, award, purchase or redemption of any shares of capital stock or any other securities of the Company or any of its Subsidiaries or any options, warrants, convertible notes or other rights to purchase or otherwise acquire any such shares of stock, other securities or options, warrants, or other rights therefore, except for the Plans, or (B) any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(viiii) any fidelity or surety bond or completion bond,;
(viiiv) any lease of personal property having a value individually in excess of $25,000,50,000 individually or $200,000 in the aggregate;
(viiiv) any lease of real property;
(vi) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(xvii) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,25,000 individually or $100,000 in the aggregate;
(xiviii) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,;
(xiiix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,;
(xiiix) any purchase order or contract for the purchase of materials involving payments in excess of $25,000 20,000 individually or more,$100,000 in the aggregate;
(xi) any partnership, dealer, distribution, agency, joint marketing, joint venture, strategic alliance, affiliate, development agreement or similar agreement or any agreement which is or contains a power of attorney given by the Company or any of its Subsidiaries;
(xii) any agreement, contract or commitment to alter the Company’s interest in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(xiii) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for use or distribution of the products, technology or services of the Company or any of its Subsidiaries;
(xiv) any construction contracts,Contract limiting in any respect the right of the Company or any of its Subsidiaries to engage or participate, or compete with any 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 first refusal, rights of first negotiation or similar rights or terms to any Person, or any Contract otherwise limiting the right of the Company or any of its Subsidiaries to sell, distribute, license or manufacture any Company Product or to purchase or otherwise obtain any software, components, parts or services;
(xv) any distributionContract with any Governmental Entity (a “Government Contract”) or any material federal, joint marketing state, county, local or development agreementforeign governmental consent, orlicense, permit, grant, or other authorization of a Governmental Entity that is required for the operation in all material respects of the Company’s or any of its Subsidiaries’ business;
(xvi) any agreement or arrangement to which the following provisions of the Companies Act apply; section 317, section 320 and/or section 330;
(xvii) any settlement or litigation “standstill” agreement; or
(xviii) other than customer purchase orders arising in the ordinary course of business to the extent that the purchase or sale provided for therein has been performed in full on or prior to the date of this Agreement, any other agreement, contract or commitment that involves payments in excess of $25,000 individually or $100,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) 30 days.
(b) True and complete copies of each Contract set forth (or required to be set forth) in Section 3.17 of the Disclosure Schedule, each a “Material Contract” and collectively, the “Material Contracts”) have been delivered to the Purchaser. Each Material Contract is a valid and binding agreement of the Company or its Subsidiaries, enforceable against the Company or its Subsidiaries and each other party thereto in accordance with its terms, and is in full force and effect with respect to the Company or its Subsidiary. The Company has and its Subsidiaries are in compliance with and have not breached, violated or defaulted under, or received written notice or notice via electronic mail that it has breached, violated or defaulted under, any of the terms or conditions of any agreementsuch Material Contract or any other Contract. To the Knowledge of the Warrantors, contract, license or commitment no party obligated to which it is a party, by which it benefits or by which it is bound (the Company pursuant to any such agreementMaterial Contract has materially breached, contractviolated or defaulted under such Material Contract, license or commitmenttaken any action or failed to act, a "Contract")such that, nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each , such action or failure to act would constitute such a breach, violation or default under such Material Contract is in full force and effect and is not by any such other party, subject to any default thereunder laws of general application relating to bankruptcy, insolvency and the relief of debtors .
(c) The Company and each of its Subsidiaries have fulfilled all obligations required pursuant to each Material Contract to have been performed by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain such Subsidiary prior to the Closing Datedate hereof, and without giving effect to the Acquisition, the Company will fulfill, when due, all necessary consents, waivers and approvals of parties its obligations under the Material Contracts that remain to be performed after the date hereof.
(d) With respect to any Contract Government Contract, there is, as are required thereunder of the date of this Agreement, no: (i) claim or request by a Governmental Entity for a contract price adjustment; (ii) dispute involving the Company or any of its Subsidiaries; or (iii) claim or equitable adjustment by the Company or any of its Subsidiaries.
(e) There is no agreement or arrangement whether or not in connection with writing to which the Merger so that all such Contracts Company or any of its Subsidiaries is a party which, on the execution or as a result of the execution of this Agreement will remain or may result in effect without modification after (i) any third party being relieved of any material obligation or becoming entitled to exercise any right, or (ii) the ClosingCompany or any of its Subsidiaries being in material default under any material agreement or arrangement or losing any benefit, right or license it currently enjoys or (iii) any material liability or obligation of the Company or any of its Subsidiaries being created or increased.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Company does not haveNeither Target nor any of its Subsidiaries, or nor the Business, is not a party to, nor is it bound by:, any of the following (together with each Contract listed in SECTION 2.13(J) of the Disclosure Schedule, each a "MATERIAL CONTRACT"):
(i) any collective bargaining agreement,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonusemployment, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment independent contractor or consulting agreement, contract or commitment with an employee or employee, independent contractor, individual consultant or salesperson salesperson, or consulting or sales agreement, contract contract, or commitment with a firm or other organization,, including any agreement, contract or commitment which relate to the indemnification of any director, officer or employee, in each case, of Target or any Subsidiary of Target (other than, in each case, for such agreements that are pursuant to standard form agreements which have been attached to the Disclosure Schedule);
(vii) any Contract, agreement or plan, including, without limitation, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional subsequent events) 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,;
(viiii) any fidelity or surety bond or completion bond,;
(viiiv) any lease of personal property having a value individually in excess of $25,000,50,000 individually or $100,000 in the aggregate;
(viiiv) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------;
(ixvi) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in excess of $25,000,50,000 individually or $100,000 in the aggregate, or any agreement that is royalty bearing;
(xivii) any agreement, contract or commitment Contract relating to the disposition or acquisition of assets (tangible or intangible) or properties, or any interest in any business enterprise Person, in each case, outside the ordinary course Ordinary Course of the Company's business,Business;
(xiiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments Contracts relating to the borrowing of money or money, the extension of creditcredit or the continuing or future grant of any Lien;
(ix) any purchase order or Contract for the purchase of materials or services involving in excess of $50,000 individually or $100,000 in the aggregate;
(x) any Contract containing covenants or other obligations granting or containing any current or future commitments regarding exclusive rights, including guaranties referred to in clause non-competition, "most favored nations," restriction on the operation or scope of its businesses or operations, or similar terms;
(viiixi) hereof,any dealer, distribution, marketing, development or joint venture agreement;
(xii) any sales representative, value added, marketing, remarketer, reseller, or independent software vendor, distribution or other agreement for the use or distribution of the products, technology or services of the Business;
(xiii) any purchase order Contract with any customer of the Business which, if fulfilled, would result in revenues to the Business of in excess of $50,000 annually or contract for $100,000 in the purchase of materials involving $25,000 or more,aggregate;
(xiv) any construction contracts,Contract between or among Target or any of its Subsidiaries, on the one hand, and Seller, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, or any of their respective Affiliates (other than Target and its Subsidiaries) or family members, on the other hand;
(xv) any distribution, joint marketing Contract regarding transfer pricing among or development agreement, between any of Target and its Subsidiaries; or
(xvi) any other agreement, contract or commitment Contract that involves amounts in excess of $25,000 50,000 individually or more or $100,000 in the aggregate and is not cancelable without penalty within thirty (30) days.
(b) The Company Seller has not breachedprovided to Buyer true, violated or defaulted undercorrect and complete copies of all Material Contracts. With respect to each Material Contract, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any i) such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Material Contract is valid, legally binding, enforceable, and in full force and effect, and will continue to be in full force and effect and following the Closing, (ii) none of Target, its Subsidiaries or Focus Softek is not subject in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any Material Contract is in breach or default thereunder by thereof, and none of Seller, its Subsidiaries or Focus Softek, has given to or received from any party obligated other Person any written notice or other written communication or, to the Company pursuant thereto. The Company has obtainedKnowledge of Seller, any oral notice or other oral communication regarding any actual, alleged, possible or potential breach of, or will obtain prior default under, any Material Contract, (iii) to the Closing DateKnowledge of Seller, no event has occurred or circumstance exists that with notice or lapse of time or both would result in a breach or default or permit termination, modification, or acceleration under such Material Contract, (iv) no party has repudiated any provision of such Material Contract, (v) such Material Contract has been entered into on arm's length terms and at fair market value, and (vi) as of the date of this Agreement, there are no outstanding renegotiations of, or outstanding rights to renegotiate, any amounts paid or payable under any Material Contract with any Person having the contractual or statutory right to demand or require such renegotiation.
(c) SECTION 2.14(C) of the Disclosure Schedule sets forth all necessary consents, waivers and approvals of parties to any Contract Contracts as are required thereunder in connection with the Merger Acquisition Transactions or the other transactions contemplated by this Agreement or any Related Agreement, or for any such Contract to remain in full force and effect without limitation, modification or alteration after the Closing so that as to preserve all rights of, and benefits to, Target and its Subsidiaries under such Contracts will remain in effect without modification from and after the Closing.
Appears in 1 contract
Sources: Share Purchase Agreement (Nuance Communications, Inc.)
Agreements, Contracts and Commitments. (a) The Except as set forth on Schedule 2.12(a), the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreement,agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,;
(iv) any employment or consulting agreement, agreement or contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreementagreement or contract, contract or commitment with under which a firm or other organization,organization provides services to the Company pursuant to which the Company is obligated to make payments in excess of $20,000 per year;
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(vi) any fidelity or surety bond or completion bond,;
(vii) any lease of personal property having a value individually in excess of $25,000,20,000;
(viii) any agreement of indemnification or guaranty, guaranty (other than as set forth indemnification provisions in agreements listed in Exhibit Cdistribution, ---------reseller and End-User Licenses);
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,;
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,20,000 individually or $40,000 in the aggregate;
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,;
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 or more,;
(xiv) any construction contracts,contract;
(xv) any material distribution, joint marketing or development agreement;
(xvi) any agreement, contract or commitment pursuant to which the Company has granted or may grant in the future, to any party a source-code license or option or other right to use or acquire source-code (other than the Company's source code escrow arrangements with distributors, resellers and/or End Users); or
(xvixvii) any other agreement, contract or commitment (other than End User Licenses) that involves $25,000 40,000 or more or is not cancelable without penalty within thirty (30) days.
(b. Schedule 2.12(a) The sets forth a list of the Company's top 15 customers according to revenue for the fiscal year ended December 31, 1998, and each customer with which the Company currently has an agreement that the Company in good faith expects to be one of the Company's top 15 customers for the fiscal year ending December 31, 1999, and a list of all effective agreements between such customer and the Company. Except for such alleged breaches, violations and defaults of which the Company has knowledge, and events of which the Company has knowledge that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all of which are noted in Schedule 2.12(b), the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits be set forth on Schedule 2.12(a) or by which it is bound Schedule 2.11(b) (any such agreement, contract, license contract or commitment, a "ContractCONTRACT"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.12(b), is not subject to any material default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (New Era of Networks Inc)
Agreements, Contracts and Commitments. (a) The Except as set forth in Exhibit C, the Company does not have, or is --------- not bound by:
(i) any collective bargaining agreement,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or
(xvi) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder Stockholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in Exhibit C, is not subject to any default thereunder by any party obligated to --------- the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Except as set forth on Schedule 2.12(a), the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organizationorganization provides services to the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or,
(xvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code,
(xvii) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days,
(xviii) any licenses of intellectual property to or from any person, except for any commercial off-the-shelf software licenses, label licenses, “shrink wrap” or “click through” licenses or any other similar publicly available end user license agreements,
(xix) any agreement containing registration rights with respect to any of its securities or pursuant to which the Company may be obligated to register any securities,
(xx) any contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of the Company or requiring any payments or other distributions based on such profits, revenues or cash flows, or
(xxi) any contracts or agreements with any director, officer or material stockholder of the Company, or with any person related to any such person or with any company or other organization in which any director, officer, or material stockholder of the Company, or anyone related to any such person, has a direct or indirect financial interest (for purposes hereof, the term “material stockholder” shall mean any person or entity that owns, beneficially or of record, more than five percent (5%) of any class or series of the Company’s capital stock).
(b) The Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 2.12(b), the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits or by which it is bound be set forth on Schedule 2.12(a) and Schedule 2.11(b) (any such agreement, contract, license contract or commitment, a "“Contract"”), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.12(b), is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Except as set forth in Section 2.15 of the Disclosure Schedule (specifying the appropriate paragraph), as of the date hereof, neither the Company does not havenor any of its Subsidiaries is a party to, or is not bound by:
(i) (A) any collective bargaining employment, contractor (whether an individual or other Person) or consulting (whether an individual or other Person) agreement,, contract or commitment providing for annual compensation in excess of $50,000 or (B) any agreement, contract or commitment to grant any severance or termination payment (in cash or otherwise) to any employee, consultant or contractor in excess of $25,000;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase planCompany Employee 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,;
(viiii) any fidelity or surety bond or completion bond,;
(viiiv) any lease of personal property having a value individually in excess of $25,000,100,000 individually or $250,000 in the aggregate;
(viiiv) any agreement of indemnification or guaranty, other than as set forth guaranty by the Company or its Subsidiaries that would reasonably be expected to result in agreements listed in Exhibit C, ---------material liability;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(xvi) any agreement, contract or commitment relating to capital expenditures and involving which involves future payments in excess of $25,000,100,000 individually or $250,000 in the aggregate;
(xivii) any agreement, contract or commitment Contract relating to the disposition or acquisition of material assets or any interest in any material business enterprise outside the ordinary course of the Company's ’s business,;
(xiiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred other than (A) accounts receivables and payables and (B) loans to in clause (viii) hereof,or from direct or indirect wholly-owned Subsidiaries;
(xiiiix) any purchase order or contract for the purchase of materials tangible assets involving in excess of $25,000 100,000 individually or more,$250,000 in the aggregate;
(xivx) any construction contracts,
(xv) any material dealer, distribution, joint marketing marketing, affiliate, sales representative, original equipment manufacturer, value added, remarketer, reseller, or independent software vendor agreement;
(xi) any material nondisclosure, confidentiality or similar agreement with any of the Persons specified in Section 2.15(a)(xi) of the Disclosure Schedule;
(xii) any joint venture or joint development agreement, arrangement pursuant to which the Company will have an ongoing obligation (other than non-exclusive licenses of the Company Products entered into in the ordinary course of business); or
(xvixiii) any other agreement, contract or commitment that involves payment by the Company of $25,000 100,000 individually or $250,000 in the aggregate or more or and is not cancelable without penalty within thirty (30) 90 days.
(b) The Company has made available to Parent true and complete copies of each Contract (or summaries of the material terms of the same if such copies are unavailable or incomplete) required to be disclosed pursuant to Section 2.2, Section 2.12, Section 2.13, Section 2.14, and this Section 2.15 (each, a “Material Contract” and collectively, the “Material Contracts”).
(c) Except as set forth in Section 2.15(c)(i) of the Disclosure Schedule, each Material Contract to which the Company is a party or any of its properties or assets (whether tangible or intangible) is subject is a valid and binding agreement of the Company, and to the Company’s Knowledge, each other party thereto, enforceable against the Company, and to the Company’s Knowledge, each other party thereto, in accordance with its terms and is in full force and effect with respect to the Company and, to the Company’s Knowledge, each other party thereto 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. Except as set forth in Section 2.15(c)(ii) of the Disclosure Schedule, the Company is in 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 terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Material Contract"), nor to the Company’s Knowledge is any party obligated to the Company or pursuant to any -------- Principal Shareholder aware of Material Contract subject to any event that would constitute such a material breach, violation or default thereunder, nor does the Company have Knowledge of any presently existing facts or circumstances that, with the lapse of time, giving of notice notice, or both. Each Contract is in full force and effect and is not subject to any , would constitute such a material breach, violation or default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to any such other party.
(d) Except as set forth in Section 2.15(d) of the Closing DateDisclosure Schedule, all necessary consents, waivers and approvals outstanding indebtedness for borrowed money of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect Company may be prepaid without modification after the Closingpenalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Company Except as set forth on Schedule 7.1.12, Transferor does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,0005,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Transferor to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,0005,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in any business enterprise outside the ordinary course of the CompanyTransferor's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 10,000 or moremore other than purchases in the ordinary course of business,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or
(xvi) any other agreement, contract or commitment that involves $25,000 5,000 or more or and is not cancelable without penalty within thirty (30) days.
(bxvii) The Company Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all as noted in Schedule 7.1.12, Transferor has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment to which it is a party, by which it benefits party or by which it is bound and which are required to be set forth in Schedule 7.1.12 (any such agreement, contract, license contract or commitment, a "ContractCONTRACT")) except for breaches, nor is the Company violations or any -------- Principal Shareholder aware of any event defaults that would constitute such will not have a breach, violation or default with the lapse of time, giving of notice or bothMaterial Adverse Effect. Each Contract agreement, contract or commitment set forth in any of Transferor Schedules is in full force and effect and and, except as otherwise disclosed in Schedule 3.12(b), is not subject to any default thereunder of which Transferor has knowledge by any party obligated to the Company Transferor pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Alternative Construction Company, Inc.)
Agreements, Contracts and Commitments. (aExcept as set forth in Section 2.11(a) The of the Company Disclosure Schedule as of the date of this Agreement, the Company does not havehave continuing obligations under, or is not a party to nor is it bound by, any existing:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or pay, post-employment liabilities or obligationsobligations or “golden parachute” provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization, other than the Intellectual Property Assignments,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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, except as provided herein,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value annual lease payments individually in excess of $25,000,
(viii) any agreement of indemnification indemnification, warranty or guaranty, other than as set forth any End User Agreement or Shrinkwrap Agreement, provided in agreements listed the ordinary course of the Company’s business or substantially similar in Exhibit C, ---------nature to those provided in the Company’s ordinary course of business,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00050,000, other than the Existing Loan Documents,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit (other than sales on credit in ordinary course), including guaranties referred to in clause (viii) hereofother than the Existing Loan Documents,
(xiii) any purchase order or contract for the purchase of materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or product development agreement, or
(xvixiv) any other agreement, contract or commitment that involves requires or would reasonably be expected to require payment of $25,000 50,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Sonic Innovations Inc)
Agreements, Contracts and Commitments. (a) The As of the date of this ------------------------------------- Agreement, the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or similar post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment agreement with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment agreement with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually involving annual payments by the Company in any individual case in excess of $25,00050,000,
(viii) other than pursuant to the Company's standard end-user license agreement (which is attached to the disclosure schedule), any agreement of pursuant to which the Company is obligated to provide indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------guaranty the indebtedness or liabilities of third parties,
(ix) any agreement, contract or commitment agreement containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments required to be made by the Company after the date of this Agreement in excess of $25,000100,000,
(xi) any agreement, contract or commitment agreement relating to the disposition or acquisition by the Company after the date of this Agreement of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by or extension of creditcredit by or to the Company, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials (not including in-license of technology) involving $25,000 50,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, oragreement which cannot be canceled without penalty upon notice of sixty (60) days or less,
(xvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party a source-code license or option or other agreementright to use or acquire source-code, contract or commitment or
(xvii) any other agreement that involves payments by the Company of $25,000 100,000 or more or more; or
(xviii) any other agreement that is not cancelable without penalty of $25,000 or more within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Merger Agreement (Critical Path Inc)
Agreements, Contracts and Commitments. (a) The Except as set forth on Schedule 2.12(a), the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreement,agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,;
(iv) any employment or consulting agreement, agreement or contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreementagreement or contract, contract or commitment with under which a firm or other organization,organization provides services to the Company pursuant to which the Company is obligated to make payments in excess of $20,000 per year;
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase planplan (other than the Company Option Plan and the Incentive Stock Option Agreements), any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(vi) any fidelity or surety bond or completion bond,;
(vii) any lease of personal property having a value individually in excess of $25,000,20,000;
(viii) any agreement of indemnification or guaranty, guaranty (other than as set forth indemnification provisions in agreements listed in Exhibit Cdistribution, ---------reseller and End-User Licenses);
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,;
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,20,000 individually or $50,000 in the aggregate;
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,;
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 20,000 or more,;
(xiv) any construction contracts,contract;
(xv) other than End-User Licenses, any material distribution, joint marketing or development agreement;
(xvi) any End-User Licenses with customers who the Company considers to be active customers;
(xvii) any agreement, contract or commitment pursuant to which the Company has granted or may grant in the future, to any party a source-code license or option or other right to use or acquire source-code (other than the Company's source code escrow arrangements with distributors, resellers and/or End Users); or
(xvixviii) any other agreement, contract or commitment (other than End-User Licenses) that involves $25,000 20,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Schedule 2.12(b) sets forth a list of the Company's top ten (10) customers according to revenue for the fiscal year ended June 30, 1999 and for the eight (8) months ended February 29, 2000.
(c) To the Company's knowledge, the Company has not breached, violated or defaulted under, or received notice that it has materially breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits be set forth on Schedule 2.12(a) or by which it is bound Schedule 2.11(b) (any such agreement, contract, license contract or commitment, a "ContractCONTRACT"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each ) and each Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.12(c), no Contract is not subject to any material default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (New Era of Networks Inc)
Agreements, Contracts and Commitments. (a) The Except as set forth on ------------------------------------- Schedule 2.17(a), the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements employment or arrangements consulting agreement, contract or commitment with any officer, director, employee or member of the Company's Board of Directors, other than those that contain any severance pay or post-employment liabilities or obligationsare terminable by the Company,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment agreement with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with under which a firm or other organizationorganization provides services to the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually obligating the Company to make annual payments in excess of $25,00010,000,
(viii) any agreement of indemnification or guaranty, guaranty (other than as set forth in agreements listed in Exhibit C, ---------end-user license agreements),
(ix) any agreement, contract or commitment agreement containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments in excess of $25,000,
(xi) any agreement, contract or commitment agreement relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any open purchase order or contract for the purchase of materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any dealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or development merchant agreement, or,
(xvi) any agreement pursuant to which the Company has granted or may be obligated to grant in the future, to any party a source-code license or option or other agreementright to use or acquire source-code, contract including any agreements which provide for source code escrow arrangements,
(xvii) any sales representative, original equipment manufacturer, value added, remarketer or commitment other agreement for distribution of the Company's products or services, or the products or services of any other person or entity,
(xviii) any agreement pursuant to which the Company has advanced or loaned any amount to any stockholder of the Company or any director, officer, employee, or consultant other than business travel advances in the ordinary course of business consistent with past practice, or
(xix) any other agreement that involves $25,000 or more or in future payments and is not cancelable without penalty within thirty ninety (3090) days.
(b) The . Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 2.17(b), the Company has not breached, violated or defaulted underunder in any material respect, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a partybe set forth on Schedule 2.17(a), by which it benefits Schedule 2.14(b) or by which it is bound Schedule 2.14(c) (any such agreement, contract, license contract or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and -------- effect and and, except as otherwise disclosed in Schedule 2.17(b), is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Inktomi Corp)
Agreements, Contracts and Commitments. (a) The Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementContract,
(ii) any agreements or arrangements Contract that contain contains any severance pay or post-employment liabilities Liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment Contracts with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organizationorganization provides services to the Company,
(v) any agreement Contract or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,00010,000,
(viii) any agreement Contract of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment Contract containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in excess of $25,00010,000,
(xi) any agreement, contract or commitment Contract relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements Contracts or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of materials Contracts involving $25,000 10,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, orContracts,
(xvi) any Contracts pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other agreementright to use or acquire source-code,
(xvii) any Contracts pursuant to which the Company has developed and/or delivered or has received funds from any Governmental Entity to develop and/or deliver any Intellectual Property, contract or
(xviii) any other Contract or commitment that involves $25,000 10,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Digital Impact Inc /De/)
Agreements, Contracts and Commitments. (a) The Except as set forth in Section 4.15(a) of the Disclosure Schedule (specifying the appropriate clause of this Section 4.15(a) to which such Contract relates), neither the Company does not havenor any of its Subsidiaries nor any of its ERISA Affiliates is a party to, or is not bound as of the date hereof by:
(i) (A) any collective bargaining agreement,Employee Agreement, Contract or commitment to grant any bonus, change of control, severance or other termination-related payment (in cash or equity or otherwise) to any Employee; or (B) any Employee Agreement which cannot be terminated without cause at the discretion of the Company, its Subsidiaries or the relevant ERISA Affiliate, as applicable;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreementpolicy, contract or commitment with a firm or other organization,
(v) any agreement past practice or plan, including, without limitation, including any stock option plan, stock appreciation rights plan or stock purchase plan, or any of the plan providing similar equity awards, for which any benefits of which will be provided or increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (or any events following this Agreement, contingent or otherwise), or for which the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement,;
(viiii) any fidelity or surety bond or completion bond,;
(viiiv) any lease of of, or purchase Contract for, personal property having a value individually in excess of $25,000,50,000 individually or $150,000 in the aggregate, or any Lease Agreements;
(viiiv) any Contract of indemnification, hold harmless agreement of indemnification or guaranty, other than: Standard Form Agreements, Standard NDAs, Inbound Licenses, Contracts for Open Source Software or Generally Commercially Available Code (other than as set forth Generally Commercially Available Code incorporated into any Company Products) and any other Contract listed elsewhere in agreements listed in Exhibit C, ---------this Section 4.15(a);
(ixvi) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment Contract relating to capital expenditures and involving future payments in excess of $25,000,50,000 individually or $150,000 in the aggregate;
(xivii) any agreement, contract or commitment Contract relating to the disposition or acquisition of material assets or any equity or debt interest in any Person or business enterprise outside the ordinary course of the Company's business,enterprise;
(xiiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements Contracts or instruments relating to the borrowing of money Indebtedness or extension of credit;
(ix) any Contract with any Top Customer or Top Supplier;
(x) any sales representative, original equipment manufacturer, value added, remarketer, reseller, distribution, or independent software vendor, or other Contract for sale or distribution of the products, technology or services of the Company or any of its Subsidiaries;
(xi) any Contract pursuant to which the Company or any of its Subsidiaries is bound to or has committed to provide any product or service to any third party on a most favored nation (MFN) basis or similar terms;
(xii) any Contract pursuant to which the Company or any of its Subsidiaries is bound to, or has committed to provide or license, any product or service to any third party (including guaranties referred any reseller or distributor of products) on an exclusive basis or to in clause (viii) hereof,acquire or license any product or service on an exclusive basis from a third party;
(xiii) any purchase order Contract pursuant to which the Company or contract for the purchase any of materials involving $25,000 its Subsidiaries has licensed or more,assigned to any third party any Intellectual Property Rights other than Ordinary Course Outbound Agreements;
(xiv) any construction contracts,
(xv) other Contract that requires future payments of more than $50,000 individually or $100,000 in the aggregate from or to the Company or any distribution, joint marketing or development agreement, or
(xvi) any other agreement, contract or commitment that involves $25,000 or more of its Subsidiaries and does not expire or is not cancelable without penalty within thirty ninety (3090) daysdays (specifically excluding employment agreements and offer letters);
(xv) any Contract pursuant to which the Company or any of its Subsidiaries has undertaken to deliver, or pursuant to which the receipt of revenue is contingent upon the delivery of, products or services;
(xvi) any Contract currently in effect with any former officer, director, member or stockholder (or group of members or stockholders) of the Company or any of its Subsidiaries;
(xvii) any power of attorney relating to the Company or any of its Subsidiaries that is currently effective and outstanding;
(xviii) other than customary release agreements entered into in the ordinary course of business in connection with the termination of Employees which have been Made Available to Parent, any settlement or severance Contract with any Employee, group of Employees, or Governmental Authority; and
(xix) any collective bargaining Contract or similar Contract, including any Contract with any union, works council, trade union, or other labor relations entity.
(b) The Company has not breachedMade Available true, violated or defaulted undercorrect and complete copies of all Contracts required to be disclosed pursuant to Section 4.11(e), or received notice that it has breachedSection 4.13(c), violated or defaulted underSection 4.14, any and this Section 4.15 existing as of the terms or conditions of date hereof (each such Contract, including any agreementsuch Contracts entered into after the date hereof and subject to the descriptions set forth above, contracta “Material Contract” and collectively, license or commitment the “Material Contracts”).
(c) Each Material Contract to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of its Subsidiaries is a party or any event that would constitute of their respective properties or assets (whether tangible or intangible) are subject is a valid and binding agreement of the Company or such a breachSubsidiary, violation as applicable, enforceable against the Company or default such Subsidiary, as applicable, in accordance with the lapse of timeits terms, giving of notice or both. Each Contract and is in full force and effect and is not subject to any default thereunder by any party obligated with respect to the Company pursuant theretoor such Subsidiary, as applicable, and, to the Knowledge of the Company, any other party thereto 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 Neither the Company nor any of its Subsidiaries has obtainedviolated or is in violation of, in any material respect, any provision of, or will obtain prior has committed or failed to perform any act which, with or without notice, lapse of time or both would constitute a material breach of, a default or an event of default under the provisions of, any Material Contract. To the Knowledge of the Company, (i) no Person other than the Company or its Subsidiaries, which is party to any Material Contract, has violated or is in violation of, in any material respect, any provision of, or has committed or failed to perform any act which, with or without notice, lapse of time or both, would constitute a material breach of, a default or an event of default under the provisions of any Material Contract, and (ii) to the Closing DateKnowledge of the Company, all necessary consentsno event or condition has occurred that would reasonably be expected to result in a violation of, waivers and approvals in any material respect, any provision of, or the failure to perform any act which, with or without notice, lapse of parties to time or both, would constitute a material breach of, a default or an event of default under the provisions of any Material Contract. Except as set forth in Section 4.5 of the Disclosure Schedule, no Material Contract as are required thereunder requires the obtaining of any consent, approval, notation or waiver of any third party in connection with the Merger so transactions contemplated by this Agreement. None of the Company or its Subsidiaries or any of its or their officers, directors, or employees, by or on behalf of the Company or its Subsidiaries, is party to or has ever been a party to a Government Contract. As of the date hereof, there are no new Contracts that all such Contracts will remain in effect without modification after are being actively negotiated and that would be required to be listed on Section 4.15(a) of the ClosingDisclosure Schedule.
Appears in 1 contract
Sources: Merger Agreement (Informatica Corp)
Agreements, Contracts and Commitments. (a) The Except as set forth on SCHEDULE 2.12(a), the Company does not have, or and is not a party or bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations, other than reasonable notice provisions at law,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organizationorganization provides services to the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,00050,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00050,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the business of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 35,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement,
(xvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or
(xvixvii) any other agreement, contract or commitment that involves $25,000 50,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The . Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in SCHEDULE 2.12(b), the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any End-User License or any agreement, contract, license contract or commitment required to which it is a party, by which it benefits or by which it is bound be set forth on SCHEDULE 2.12(a) (any such End-User License or any agreement, contract, license contract or commitment, a "Contract"CONTRACT," it being understood that this representation applies to license agreements, service agreements and management agreements in Company's standard form, which shall constitute Contracts for purposes of this Agreement, but need not be included in SCHEDULE 2.12(a), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both). Each Contract is in full force and effect and and, except as otherwise disclosed in SCHEDULE 2.12(b), is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, no agreements with customers or will obtain prior to the Closing Date, all necessary consents, waivers and approvals suppliers involving credit terms of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closingmore than one year.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Except as set forth in Section 2.13 of the Disclosure Schedule, the Company does not have, or is not a party to, nor is bound by:
(i) any collective bargaining agreement,agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organization,organization provides services to the Company;
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(vi) any fidelity or surety bond or completion bond,;
(vii) any lease of personal property having a value individually in excess of $25,000,;
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,;
(xix) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s business,;
(xiixi) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,;
(xiii) any purchase order or contract for the purchase of materials involving $25,000 or more,
(xiv) any construction contracts,
(xvxii) any distribution, joint marketing or development agreement;
(xiii) any agreements involving payments based on profits or revenues of the Company;
(xiv) any agreements pertaining to projects commonly known as “fixed price/deliverable based projects” involving an amount in excess of $25,000;
(xv) any agreements containing “most favored nation” provisions or any similar provision requiring that a third party be offered terms or concessions at least as favorable as those offered to one or more other parties;
(xvi) any powers of attorney or agency agreements;
(xvii) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or
(xvixviii) any other agreement, contract or commitment that involves could reasonably be expected to require the Company to spend $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) . The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits or by which it is bound be set forth in Section 2.13 of the Disclosure Schedule (any such agreement, contract, license contract or commitment, a "“Contract"”), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in Section 2.13 of the Disclosure Schedule, is not subject to any material default thereunder of which the Company has Knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers provided Parent with an accurate and approvals complete copy of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closingeach Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. Set forth in Section 2.16 of the Sand Disclosure Letter are a complete and correct list and summary description of all material contracts, agreements, orders, leases, licenses and other commitments (aeach a "SAND CONTRACT") The Company does not haveof Sand at the date of this Agreement. Except as set forth in the Sand Disclosure Letter, or Sand is not a party to nor is bound by:
(ia) any collective bargaining agreement,agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iiib) any bonus, deferred compensation, incentive compensation, pension, profit profit-sharing or retirement plans, or any other employee benefit plans or arrangements,;
(ivc) any employment or consulting agreement, contract or commitment with an employee any officer or individual consultant director level employee, or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,member of Sand's Board of Directors;
(vd) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viiie) any agreement of indemnification or guaranty, guaranty not entered into in the ordinary course of business other than as set forth in indemnification agreements listed in Exhibit C, ---------between Sand and any of its officers or directors;
(ixf) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Sand to engage in any line of business or to compete with any person,;
(xg) any agreement, contract or commitment relating to capital expenditures and involving future payments obligations in excess of $25,000,50,000 and not cancelable without penalty;
(xih) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets or any interest not in any business enterprise outside the ordinary course of the Company's business,business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,;
(xiiij) any purchase order or contract for the purchase of materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreementagreement (excluding agreements with resellers, value added resellers or independent software vendors entered into in the ordinary course of business that do not permit such resellers or vendors to modify Sand's software products);
(k) any distribution agreement (identifying any that contain exclusivity provisions); or
(xvil) any other agreement, contract or commitment that which involves payment by Sand under any such agreement, contract or commitment of $25,000 50,000 or more or individually and is not cancelable without penalty within thirty (30) days.
(b) The Company . Neither Sand, nor to Sand's knowledge any other party to a Sand Contract, has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions of any agreement, contract, license of such Sand Contracts in such a manner as would permit any other party to cancel or commitment to which it is a party, by which it benefits or by which it is bound (terminate any such agreement, contract, license or commitment, a "Sand Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior would permit any other party to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closingseek damages.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Insilicon Corp)
Agreements, Contracts and Commitments. (a) The Except as set forth in Section 2.11(a) of the Company Disclosure Schedule, each of the Company and its subsidiaries does not havehave continuing obligations under, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or pay, post-employment liabilities or obligationsobligations or "golden parachute" provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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, except as provided herein,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value annual lease payments individually in excess of $25,000,
(viii) any agreement of indemnification indemnification, warranty or guaranty, guaranty other than as set forth in agreements listed in Exhibit C, ---------the ordinary course of business,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00050,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of material assets or any interest in any business enterprise outside the ordinary course of the Company's business or any subsidiary's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement,
(xiv) any agreement, contract or commitment with any customer or vendor which, during the last two fiscal years of the Company, accounted, or is expected to account during the Company's current fiscal year, for more than 5% of the Company's revenue or trade payables, as applicable or
(xvixv) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Except for any alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all as noted in Section 2.11(b) of the Company Disclosure Schedule, neither the Company nor any of its subsidiaries has not materially breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any material agreement, contract, license contract or commitment to which it is a party, by which it benefits set forth in Section 2.10 or by which it is bound Section 2.11(a) of the Company Disclosure Schedule (any such agreement, contract, license or commitment, a "Company Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Company ---------------- Contract is in full force and effect and and, except as otherwise disclosed in Section 2.11(b) of the Company Disclosure Schedule, is not subject to any default thereunder of which the Company or any subsidiary is aware by any party obligated to the Company or any subsidiary pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Splash Technology Holdings Inc)
Agreements, Contracts and Commitments. (a) The Except as set forth on ------------------------------------- Schedule 2.12, the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreement,agreements.
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organization,organization provides services to the Company.
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,;
(vi) any fidelity or surety bond or completion bond,;
(vii) any lease of personal property having a value individually agreement, contract or commitment under which it has limited or restricted its right to compete with any person in excess of $25,000,any respect;
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,;
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,10,000;
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements arrangements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,;
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 10,000 or more,;
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement;
(xv) any assignment, license or other agreement with respect to any form of intangible property, or,
(xvi) any other agreement, contract or commitment that involves $25,000 10,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The . Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all of which are noted in Schedule 2.12, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a partybe set forth on Schedule 2.12, by which it benefits Schedule 2.11(a) or by which it is bound Schedule 2.11(b) (any such agreement, contract, license contract or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.12, is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Merger Agreement (Synbiotics Corp)
Agreements, Contracts and Commitments. (a) The Except as set forth on Schedule 2.12(a), the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,00010,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00010,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's businessenterprise,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 10,000 or moremore other than purchases in the ordinary course of business,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or
(xvi) any other agreement, contract or commitment that involves $25,000 20,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all as noted in Schedule 2.12(b), the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment to which it is a party, by which it benefits party or by which it is bound (any such agreement, contract, license contract or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract set forth in any of the Company Schedules is in full force and effect and and, except as otherwise disclosed in Schedule 2.12(b), is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing DateClosing, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the ClosingAcquisition.
Appears in 1 contract
Sources: Stock Acquisition Agreement (Scientific Technologies Inc)
Agreements, Contracts and Commitments. (a) The Company does not haveExcept as set forth on Schedule 3.16, Schedule 3.25(a), Schedule 3.26(b), Schedule 3.26(c), or Schedule 3.25(g), neither the Company nor any of its Subsidiaries has, is not a party to or is bound by:
(i) any collective bargaining agreement,;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an any current Employee, contractor, consultant or advisor or with any other Employee or former contractor, consultant, or advisor under which the Company or any of its Subsidiaries has any outstanding obligation or liability;
(iii) any bonus or any other incentive compensation, deferred compensation, severance, salary continuation, pension, profit sharing or retirement plan, or any other employee benefit plan or arrangement;
(iv) any commission and/or sales agreement with any current Employee, individual consultant or salesperson, or with any other Employee, former individual consultant or former salesperson under which the Company or consulting any of its Subsidiaries has any outstanding liability or sales agreementobligation, contract or commitment with under which a firm or other organization,organization provides commission or sales-based services to the Company or any of its Subsidiaries;
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of the Merger or any of the other transactions contemplated by this Agreement and the Related Agreements or the value of any of the benefits of which will be calculated on the basis of the Merger or any of the other transactions contemplated by this Agreement,Agreement or the Related Agreements;
(vi) any fidelity or surety bond or completion bond,;
(vii) any lease of personal property having a value individually in excess of $25,000,100,000;
(viii) any agreement of indemnification or guaranty, guaranty to any third party (other than as set forth agreements for the sale or resale of Company Products entered into in agreements listed the ordinary course of business which provide indemnification only for patent infringement and which expressly disclaim special, consequential and punitive damages and for which the indemnification liability of the Company and its Subsidiaries in Exhibit C, ---------the aggregate is not material);
(ix) any agreement, contract or commitment agreement containing any covenant limiting the freedom of the Company to engage in any line of business or in any geographic territory or to compete with any person,Person, or which grants to any Person any exclusivity to any geographic territory, any customer, or any product or service;
(x) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments in excess of $25,000,100,000;
(xi) any agreement, contract or commitment agreement relating to (A) the acquisition or disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's ’s or any of its Subsidiaries’ business,, in each case involving $100,000 or more or (B) the acquisition or disposition of any interest (including any asset purchase, whether or not in excess of $100,000) in any business enterprise;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or the extension of credit, including guaranties referred to in clause (viii) hereof,, other than accounts receivable and accounts payable arising in the ordinary course of business;
(xiii) any unpaid or unperformed purchase order or purchase contract (including for the purchase of materials services) involving $25,000 100,000 or more,;
(xiv) any construction contracts,dealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or merchant agreement involving $100,000 or more;
(xv) any distributionagreement pursuant to which the Company or any of its Subsidiaries has granted or may be obligated to grant in the future, joint marketing to any Person, a source-code license or development agreementoption or other right to use or acquire source code, orincluding any agreements which provide for source code escrow arrangements;
(xvi) any sales representative, original equipment manufacturer, value added re-seller, re-marketer or other agreementagreement for distribution of the Company’s or any of its Subsidiaries’ products or services, contract or commitment the products or services of any other Person, other than re-seller agreements that have generated less than $100,000 in sales over the last twelve (12) month period;
(xvii) any agreement pursuant to which the Company has advanced or loaned any amount to any Stockholder of the Company or any Employee, or consultant thereof, other than business travel advances in the ordinary course of business consistent with past practice; or
(xviii) any other agreement that involves $25,000 100,000 or more or is not cancelable without penalty within thirty ninety (3090) days.
(b) . Each Contract is in full force and effect. The Company has and each of its Subsidiaries are in material compliance with and have not materially breached, violated or defaulted under, or received written notice that it has they have breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is does the Company or any -------- Principal Shareholder aware have knowledge of any event or occurrence that would constitute such a breach, violation or default (with or without the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing).
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Except as set forth on SCHEDULE 2.12(a), the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any written employment or consulting agreement, contract or commitment (excluding "at will" employment relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organizationorganization provides services to the Company, and any other such agreement, contract or commitment involving payments in excess of $10,000 per annum,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of relating to capital expenditures and involving payments required to be made by the Company to engage after the date of this Agreement in any line excess of business or to compete with any person$25,000,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition by the Company of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xiixi) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof, other than advances to employees for travel and business expenses in the ordinary course of business consistent with past practices,
(xiiixii) any purchase order or contract for the purchase by the Company of raw materials involving $25,000 or moremore after the date of this Agreement,
(xivxiii) any construction contracts,
(xvxiv) any distribution, joint marketing or development agreement,
(xv) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or
(xvi) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within upon notice of thirty (30) daysdays or less.
(b) The Company has not breachedExcept for such alleged breaches, violated or defaulted underviolations and defaults, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event and events that would constitute such a breach, violation or default with the lapse of time, giving of notice notice, or both, as are all noted in SCHEDULE 2.12(b), the Company is not in material breach, violation or default under, or received notice that it is in material breach, violation or default (except for notices relating to breaches, violations or defaults that have been cured or corrected in all material respects) under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on SCHEDULE 2.12(a), SCHEDULE 2.11(e), SCHEDULE 2.11(g), or SCHEDULE 2.11(h) (each such agreement, contract or commitment listed on SCHEDULE 2.12(a), SCHEDULE 2.11(e), SCHEDULE 2.11(g) and SCHEDULE 2.11(h), a "CONTRACT"). Each Contract is in full force and effect and and, except as otherwise disclosed in SCHEDULE 2.12(b), is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Netscape Communications Corp)
Agreements, Contracts and Commitments. (a) The Except as set forth in Exhibit C, the Company does not have, --------- or is not bound by:
(i) any collective bargaining agreement,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or
(xvi) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in Exhibit C, is not subject to any default thereunder by any party obligated to --------- the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Company Except as set forth on Schedule 2.12(a), New Moon does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organizationorganization provides services to New Moon,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of Table of Contents 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company New Moon to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's New Moon’s business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distributionexclusive distribution agreement, site license, or any joint marketing or development agreement,
(xvi) any agreement pursuant to which New Moon has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or
(xvixvii) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as would reasonably be expected to have a Material Adverse Effect on New Moon and are noted in Schedule 2.12(b), New Moon has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits be set forth on Schedule 2.12(a) or by which it is bound Schedule 2.11(b) (any such agreement, contract, license contract or commitment, a "“Contract"”), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and Table of Contents and, except as otherwise disclosed in Schedule 2.12(b), is not subject to any default thereunder of which New Moon has knowledge by any party obligated to the Company New Moon pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Merger Agreement (Tarantella Inc)
Agreements, Contracts and Commitments. (a) The Except as set forth in Exhibit C, the Company does not have, or --------- is not bound by:
(i) any collective bargaining agreement,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, -------------------
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or
(xvi) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in Exhibit C, is not subject to any default thereunder by any party obligated to --------- the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Except as set forth on Section 3.12 of the Disclosure Schedule, the Company does not have, or is not a party to nor is bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) except as set forth in Section 3.12(iii) to the Disclosure Schedule, any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) except as set forth in Section 3.12(iv) to the Disclosure Schedule any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,00010,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom ability of the Company to engage in any line of business or to compete with any person,
(x) except as set forth in Section 3.7(k) to the Disclosure Schedule any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00010,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 10,000 or more,
(xiv) except as set forth in Section 3.12(xiv) to the Disclosure Schedule any construction contracts,
(xv) any distribution, joint marketing or development agreement,
(xvi) any agreement, contract or commitment with any customer which, during the last two fiscal years of the Company, accounted for, or is expected to account for, more than 10% of the Company's revenue or trade payables, or
(xvixvii) except as set forth in Sections 3.12(iii), 3.12(iv), 3.12(xiv) and 3.7(k) to the Disclosure Schedule any other agreement, contract or commitment that involves $25,000 10,000 or more or is not cancelable without penalty within thirty (30) days.
(b) . The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment to which it is a party, by which it benefits party or by which it is bound (any such agreement, contract, license contract or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a ) which breach, violation or default with would either give rise to a right to terminate a Contract or a material portion thereof or would result in additional liability to the lapse Company in excess of time, giving of notice $5,000 individually or bothin the aggregate. Each Contract is valid and binding on the Company and is in full force and effect and is not not, to the knowledge of the Company and the Shareholders after due investigation, subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing DateEffective Time, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so Merger, or as are required in order that all any such Contracts will Contract remain in effect without modification after the ClosingMerger ("Consents").
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Except as set forth on Section 2.15 of the Disclosure Schedule (specifying the appropriate paragraph), the Company does is not havea party to, or is not bound by:
(i) any collective bargaining (A) employment, contractor or consulting agreement,
; (iiB) Contract or commitment with an Employee, Consultant or contractor; or (C) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee to grant any severance or individual consultant termination pay (in cash or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,otherwise) to any Employee;
(vii) any agreement or plan, including, without limitation, including any stock unit option plan, stock unit appreciation rights plan or stock unit purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or in connection with additional or subsequent events) 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,;
(viiii) any fidelity or surety bond or completion bond,;
(viiiv) any collective bargaining, union or works council agreements;
(v) any lease of personal property having a value individually in excess of $25,000,25,000 individually or $50,000 in the aggregate;
(vi) any agreement that imposes surety, guaranty or indemnification obligations on the Company (other than indemnities contained in non-exclusive licenses of Company Products and Services to customers that have been entered into in the ordinary course of business consistent with past practice pursuant to the Company Form Agreements);
(vii) Inbound License Agreement (excluding Standard Contracts);
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------Outbound License Agreement (excluding Company Form Agreements);
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreementContract, contract lease or commitment relating to capital expenditures and involving future payments in excess of $25,000,25,000 individually or $50,000 in the aggregate;
(xix) any agreement, contract Contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,business consistent with past practice;
(xiixi) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,;
(xiiixii) any purchase order or contract for the purchase of materials involving in excess of $25,000 individually or more,$50,000 in the aggregate;
(xiii) any construction contracts;
(xiv) any construction contracts,joint marketing, joint venture, partnership, strategic alliance, affiliate or development agreement;
(xv) any distribution, joint marketing or development agreement, orContract or commitment to alter the Company’s interest in any Person in which the Company directly or indirectly holds any interest;
(xvi) any agreement, Contract or commitment pursuant to which the Company has undertaken to, or pursuant to which the receipt of revenue is contingent upon, the delivery of products or service offerings not in commercial existence as of the date of this Agreement, and specifically not contingent upon the release of any new product or new version of an existing product;
(xvii) any agreement, Contract, arrangement or understanding between the Company and a customer or partner of the Company pursuant to which paid fees must be refunded, payment of fees is contingent upon or an agreement may be terminated in the event a specified return on investment or similar success measure for use of the products or service offerings offered by the Company is not achieved;
(xviii) any agreement, Contract, arrangement or understanding between the Company and a customer or partner of the Company that includes a “most favored customer” or similar clause;
(xix) any agreement, Contract, arrangement or understanding between the Company and a customer or partner of the Company for which application revenue, under GAAP, may not be recognized on a pro rata basis over the term of the agreement or for which any application revenue must be deferred or put on hold pending a future event;
(xx) any dealer, distribution, sales representative, original equipment manufacturer, value added, remarketer, reseller, independent software vendor or other agreement for distribution of the products, Technology or services of the Company; or
(xxi) any other agreement, contract Contract, lease or commitment commitment, including any service, operating or management agreement or arrangement with respect to any Leased Real Property, that involves $25,000 individually or more $50,000 in the aggregate or is not cancelable without penalty within thirty (30) daysmore.
(b) Each Contract to which the Company is a party or any of its properties or assets (whether tangible or intangible) is subject is a valid and binding agreement of the Company enforceable, to the Knowledge of the Company, against each of the other parties thereto in accordance with its terms, and is in full force and effect with respect to the Company and, to the Knowledge of the Company, the other parties thereto, except as such enforceability may be limited by bankruptcy, insolvency, moratorium and other similar laws affecting creditors’ rights generally and by general principles of equity. The Company is in material compliance with, and has not materially breached, violated or defaulted under, or received notice or has any reason to believe that it a customer or other third party may assert that the Company has materially breached, violated or defaulted under, any of the terms or conditions of any agreementsuch Contract, contractnor, license or commitment to which it the Knowledge of the Company, is a party, by which it benefits or by which it is bound (any party obligated to the Company pursuant to any such agreement, contract, license or commitment, a "Contract"), nor is the Company or Contract subject to any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default thereunder, nor, to the Knowledge of the Company, has event occurred that with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any both would constitute such a breach, violation or default thereunder by any party obligated to the Company or any such other party. True, correct and complete copies of each Contract disclosed in the Disclosure Schedule or required to be disclosed pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.this
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Company does not have, or is not bound by:
(i) any collective bargaining agreement,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting consulting, finders or sales marketing agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,00050,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit CF, ---------
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000250,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's businessbusiness as it is presently conducted,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit in excess of $50,000, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of materials or services involving $25,000 100,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or
(xvi) any other agreement, contract or commitment that involves $25,000 100,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Company Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any material Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The Company Except as set forth on Schedule 2.12(a), Focalink does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreement,agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organization,organization provides services to Focalink;
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increasedincreased or accrue, or the vesting of benefits of which will 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,;
(vi) any fidelity or surety bond or completion bond,;
(vii) any lease of personal property having a value individually material agreement, contract or commitment under which it has limited or restricted its right to compete with any person in excess of $25,000,any material respect;
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Focalink to engage in any line of business or to compete with any person,;
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,10,000;
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of Focalink's business (except for the Company's business,transactions provided for in this Agreement);
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements arrangements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,;
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 10,000 or more,;
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement;
(xv) any assignment, license or other agreement with respect to any form of intangible property; or,
(xvi) any other agreement, contract or commitment that involves $25,000 10,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all of which are noted in Schedule 2.12(b), Focalink has not materially breached, violated or defaulted under, or received notice that it has materially breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits be set forth on Schedule 2.11 or by which it is bound Schedule 2.12(a) (any such agreement, contract, license contract or commitment, a "Focalink Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Focalink Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.12(b), to the Knowledge of Focalink is not subject to any default thereunder by any party obligated to the Company Focalink pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Merger Agreement (Adknowledge Inc)
Agreements, Contracts and Commitments. (a) The Except as set forth in Exhibit C, the Company does not have, or --------- is not bound by:
(i) any collective bargaining agreement,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually involving future payments in excess of $25,000,
(viii) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000,
(xi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of materials involving $25,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or
(xvi) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) . The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any material agreement, contract, license or commitment to which it is a party, by which it benefits or by which it is bound (any such agreement, contract, license or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in Exhibit C, is not subject to any default thereunder by any party obligated to --------- the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) The As of the date of this Agreement, the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligationspay,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment (excluding "at will" employment relationships) with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organizationorganization provides material services to the Company,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(viiv) any fidelity or surety bond or completion bond,
(viiv) any lease of personal property having a value individually in excess of $25,000100,000,
(viiivi) any agreement of indemnification or guaranty, other than as set forth in agreements listed in Exhibit C, ---------
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(xvii) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,000100,000,
(xiviii) any agreement, contract or commitment relating to the disposition or acquisition by the Company of material assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xiiix) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof, other than advances to employees for travel and business expenses in the ordinary course of business consistent with past practices,
(xiiix) any purchase order or contract for the purchase of raw materials involving $25,000 100,000 or more,
(xivxi) any construction contracts,
(xvxii) any distribution, joint marketing or development agreement,
(xiii) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other right to use or acquire source-code, or
(xvixiv) any other agreement, contract or commitment that involves $25,000 100,000 or more or is not cancelable without penalty within thirty sixty (3060) days.days excluding orders for products received by the Company in the ordinary course of business; or
(xv) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person, excluding any limitations expressed in the grant to the Company of any Intellectual Property and grants of exclusive territory in overseas distribution agreements
(b) The Company has is not breachedin material breach, violated violation or defaulted default under, or received notice that it has breachedis in breach, violated violation or defaulted default (except for notices relating to breaches, violations or defaults that have been cured or corrected in all respects) under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a partybe set forth on Schedule 2.12(a) or Schedule 2.11(b), by which it benefits or by which it is bound (any each such agreement, contract, license contract or commitment, commitment a "ContractCONTRACT"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.12(b), is not subject to any default thereunder by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Russo Paul M)
Agreements, Contracts and Commitments. (a) The Company does not have, or is not bound by:
(i) any collective bargaining agreement,contracts, licenses and agreements, to which the Company is a party with respect to any Intellectual Property with a value or cost in excess of $25,000, other than "shrink wrap" and similar commercial end- user licenses.
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
either (iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(ivx) any employment or consulting agreement, contract contract, or commitment with an employee or employee, individual consultant consultant, or salesperson or (y) any consulting or sales agreement, contract contract, or commitment with a firm or other organization,
(viii) except as contemplated by Section 1.6(e), any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(viiv) any fidelity or surety bond or completion bond,
(viiv) any lease of personal property having a value individually in excess of $25,00020,000,
(viiivi) any agreement of indemnification indemnification, to hold harmless or guaranty, ; or any obligation or liability with respect to infringement or misappropriation by the Company or any other than as set forth in agreements listed in Exhibit C, ---------person of the Intellectual Property rights of another person,
(ixvii) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of its current or anticipated business or to compete with any person,
(xviii) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of $25,00010,000,
(xiix) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xiix) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiiixi) any purchase order or contract for the purchase of materials involving $25,000 20,000 or more,
(xivxii) any construction contracts,
(xvxiii) any distribution, joint marketing or development agreement, or
(xvixiv) any other agreement, contract or commitment that involves $25,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The Company is in compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment described above to which it is a party, by which it benefits party or by which it is bound (any such agreement, contract, license contract or commitment, a "Contract"), nor is the Company or any -------- of the Principal Shareholder Shareholders aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not to the knowledge of the Company and the Principal Shareholders subject to any default thereunder by any party obligated to the Company pursuant thereto. The Following the Effective Time, the Company has obtainedwill be permitted to exercise all of the Company's rights under the Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or will obtain prior payments which the Company would otherwise be required to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closingpay.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Failure Group Inc)
Agreements, Contracts and Commitments. (a) The Except as set forth on ------------------------------------- Schedule 2.13(a), the Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementagreements,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements,
(iv) any employment or consulting agreement, contract or commitment agreement with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment agreement with a firm or other organization,
(v) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will 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,
(vi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $25,000100,000,
(viii) any agreement of indemnification or guaranty, guaranty other than those substantially the same as set forth in the agreements listed in Exhibit C, ---------of indemnification or guarantees attached hereto as Schedule 2.13,
(ix) any agreement, contract or commitment agreement containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person,
(x) any agreement, contract or commitment agreement relating to capital expenditures and involving future payments in excess of $25,000100,000,
(xi) any agreement, contract or commitment agreement relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (viii) hereof,
(xiii) any purchase order or contract for the purchase of raw materials involving $25,000 100,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement, or,
(xvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party a source-code license or option or other agreementright to use or acquire source-code, contract or commitment or
(xvii) any other agreement that involves $25,000 100,000 or more or is not cancelable without penalty within thirty (30) days.
(b) The . Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as are all noted in Schedule 2.13(b), the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract, license contract or commitment required to which it is a party, by which it benefits be set forth on Schedule 2.13(a) or by which it is bound Schedule 2.12 (any such agreement, contract, license contract or commitment, a "Contract"), nor is the Company or any -------- Principal Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract -------- is in full force and effect and and, except as otherwise disclosed in Schedule 2.13(b), is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such Contracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (International Network Services)