Agreements, Contracts and Commitments. Except as filed with the SEC or contemplated to be transferred pursuant to the IP Sale Agreement, Xcyte is not a party to or bound by: (a) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay); (b) any employment, severance, change of control or consulting agreement, contract or commitment with any employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other 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; (c) any agreement or plan, including any stock option plan, stock appreciation right plan, stock purchase plan or 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 Stock Purchase or the value of any of the benefits of which will be calculated on the basis of the Stock Purchase; (d) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directors; (e) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte to engage in any line of business or compete with any person; (f) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $100,000 and not cancelable without penalty; (g) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise; (h) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit 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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations; (k) 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 $250,000 or more; (n) any construction contract; or (o) any fidelity or surety bond or completion bond. Xcyte has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) in such manner as would permit any other party to cancel or terminate any such Xcyte Material
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Xcyte Therapies Inc)
Agreements, Contracts and Commitments. Except as filed with set forth on ------------------------------------- Schedule 2.16(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound ---------------- by:
(a) any collective bargaining agreements,
(b) 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 bonus, deferred compensation, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);arrangements,
(bd) any employment, severance, change of control employment or consulting agreement, contract or commitment agreement with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any a firm or other 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;Company,
(ce) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or other equity-based 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(df) any fidelity or surety bond or completion bond,
(g) any lease of personal property having a value individually in excess of $50,000,
(h) any agreement of indemnification or guaranty other than guaranty, except for indemnification agreements between Xcyte and any or guarantees provided in the ordinary course of its officers or directors;business in connection with the sale of the Company's products as set forth on Schedule 2.15,
(ei) any agreement, contract or commitment containing any covenant limiting in any respect the freedom right of Xcyte Company to engage in any line of business or to compete with any person;person or granting any exclusive distribution rights,
(fj) any agreement, contract or commitment agreement relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;100,000,
(gk) 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 not in the ordinary course of business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise;,
(hl) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit 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 agreementscredit, including amendments guaranties referred to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
clause (kh) 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;hereof,
(m) any purchase order or contract involving the expenditure by the Company of $200,000 or more for the purchase of raw materials involving Company's products or $250,000 100,000 or more;more or otherwise,
(n) any construction contract; orcontracts,
(o) any fidelity dealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or surety bond merchant agreement,
(p) any agreement pursuant to which the Company has granted or completion bond. Xcyte has notmay be obligated to grant in the future, nor to Xcyte’s Knowledge has 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 party person or entity,
(r) any agreement pursuant to an Xcyte Material Contract (as defined below), breached, violated which the Company has advanced or defaulted under, or received notice that it has breached, violated or defaulted under, loaned any amount to any shareholder of the terms Company or conditions any director, officer, employee or consultant other than business travel advances in the ordinary course of business consistent with past practice,
(s) any of settlement agreement entered into since the agreementsCompany's initial incorporation, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses or
(at) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) in such manner as would permit any other party to cancel agreement that involves $100,000 or terminate any such Xcyte Materialmore or is not cancelable without penalty within thirty (30) days.
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) Except as filed with set forth in Exhibit C, the SEC Company does not have, or contemplated to be transferred pursuant to the IP Sale Agreement, Xcyte is --------- not a party to or bound by:
(ai) 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, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) 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 guaranty, other than indemnification as set forth in agreements between Xcyte and any of its officers or directors;listed in Exhibit C, ---------
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;25,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 25,000 or more;,
(nxiv) any construction contract; contracts,
(xv) any distribution, joint marketing or development agreement, or
(oxvi) any fidelity other agreement, contract or surety bond commitment that involves $25,000 or completion bond. Xcyte more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 of the agreementsagreement, contracts contract, license or commitments commitment to which Xcyte it is a party party, by which it benefits or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract contract, license or commitment, an “Xcyte Material 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, 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 manner as would permit any other party to cancel or terminate any such Xcyte MaterialContracts 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. Except as filed with set forth on Schedule 2.12(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by, and neither Healtheon nor the Acquisition Sub will be bound, by virtue of the transactions contemplated hereby, by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to Xcyte, not terminable by Xcyte on ninety the Company,
(90v) days notice without liability, except any operating agreement or other agreement relating to the extent general principles operations of wrongful termination law may limit Xcyte’s ability to terminate employees at will;any business organization, including the Company,
(cvi) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvii) any fidelity or surety bond or completion bond,
(viii) any lease of personal property having a value individually in excess of $15,000,
(ix) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(ex) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fxi) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;15,000,
(gxii) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxiii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiv) any purchase order or contract for the purchase of raw materials involving $250,000 15,000 or more;,
(nxv) any construction contract; contracts,
(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, or
(oxviii) any fidelity other agreement, contract or surety bond commitment that involves $15,000 or completion bondmore or is not cancelable without penalty within thirty (30) days. Xcyte has notExcept for such alleged breaches, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as defined beloware 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Schedule 2.12(a) or by which it is bound of the type described in clauses (aSchedule 2.11(b) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) a "COMPANY CONTRACT"). Each Company Contract is in such manner full force and effect and, except as would permit otherwise disclosed in Schedule 2.12(b), is not subject to any other default thereunder of which the Company has knowledge by any party obligated to cancel or terminate any such Xcyte Materialthe Company pursuant thereto.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Healtheon Corp), Asset Purchase Agreement (Healtheon Corp)
Agreements, Contracts and Commitments. Except as filed with set forth on Schedule 3.12(a) or in the SEC or contemplated to be transferred pursuant to the IP Sale Agreementordinary course of its business, Xcyte Healtheon does not have, is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other 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;Healtheon,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) 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 indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte Healtheon to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;25,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 25,000 or more;,
(nxiv) any construction contract; 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
(oxvii) any fidelity other agreement, contract or surety bond commitment that involves $25,000 or completion bondmore or is not cancelable without penalty within thirty (30) days. Xcyte 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, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Schedule 3.12(a) or by which it is bound of the type described in clauses (aSchedule 3.11(b) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) a "HEALTHEON CONTRACT"). Each Healtheon Contract is in such manner full force and effect and, except as would permit otherwise disclosed in Schedule 3.12(b), is not subject to any other default thereunder of which Healtheon has knowledge by any party obligated to cancel or terminate any such Xcyte MaterialHealtheon pursuant thereto.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Healtheon Corp), Asset Purchase Agreement (Healtheon Corp)
Agreements, Contracts and Commitments. Except as filed with As of the SEC or contemplated to be transferred pursuant to the IP Sale date of this Agreement, Xcyte 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 bound by:group of related agreements), whether written or oral (collectively, the "YieldUP Material Contracts"):
(a) any collective bargaining agreement;
(b) any agreements that contain any unpaid severance liabilities or obligations;
(c) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay)arrangements;
(bd) any employment, severance, change of control employment or consulting agreement, contract contract, or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract contract, or commitment under which any with a firm or other organization provides services to Xcyte, not terminable by Xcyte YieldUP on ninety (90) days 30 days' notice without liability, liability except to the extent of applicable local law and/or general principles of wrongful termination law may limit Xcyte’s YieldUP's ability to terminate employees at willsuch employees;
(ce) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, or stock purchase plan or other equity-based 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(df) any fidelity or surety bond or completion bond;
(g) any lease of personal property having a value individually in excess of $25,000;
(h) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directorsguaranty;
(ei) any agreement, contract contract, or commitment containing any covenant limiting the freedom of Xcyte YieldUP to engage in any line of business or compete with any person;
(fj) any agreement, contract contract, or commitment relating to capital expenditures and involving future obligations in excess of $100,000 and not cancelable without penalty25,000;
(gk) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture venture, or other business enterprise;
(hl) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit 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 agreementscredit, including amendments guaranties referred to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
clause (kh) 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 agreementshereof;
(m) any purchase order or contract for the purchase of raw materials or acquisition of assets involving $250,000 50,000 or more;
(n) any construction contract; orcontracts;
(o) any fidelity distribution, original equipment manufacturing, sales representation, joint marketing, or surety bond development agreement;
(p) any purchase order for the sale of Company products (other than for spare parts) involving $50,000 or completion bond. Xcyte has notmore (identified by invoice number, nor to Xcyte’s Knowledge has dollar amount and scheduled shipment date); or
(q) any other party to an Xcyte Material Contract agreement, contract, or commitment which involves $25,000 or more and is not cancelable without penalty within thirty (as defined below)30) days. Schedule 3.14(a) 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 of the agreements, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract or commitment, an “Xcyte YieldUP Material Contract”) Contract in such a manner as would permit any other party to cancel or terminate the same or would permit any such Xcyte Materialother party to seek damages from YieldUP. Each YieldUP Material Contract is in full force and effect and, except as otherwise disclosed, is not subject to any default thereunder of which YieldUP is aware by any party obligated to YieldUP pursuant thereto. Except as set forth in the YieldUP Disclosure Schedule, no YieldUP Material Contract of the type referred to in Section 3.14(o) contains any grant of exclusive 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. Except as filed with the SEC (a) The Company does not have, or contemplated to be transferred pursuant to the IP Sale Agreement, Xcyte is not a party to or bound by:
(ai) 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, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) 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 guaranty, other than indemnification as set forth in agreements between Xcyte and any of its officers or directors;listed in Exhibit C, ---------
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;25,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 25,000 or more;,
(nxiv) any construction contract; contracts,
(xv) any distribution, joint marketing or development agreement, or
(oxvi) any fidelity other agreement, contract or surety bond commitment that involves $25,000 or completion bond. Xcyte more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 of the agreementsagreement, contracts contract, license or commitments commitment to which Xcyte it is a party party, by which it benefits or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract contract, license or commitment, an “Xcyte Material 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 manner as would permit any other party to cancel or terminate any such Xcyte MaterialContracts 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. (a) Except as filed with set forth on SCHEDULE 2.12(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or and is not bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment (excluding "at will" employee relationships) with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other 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;Company,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $50,000,
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;50,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 50,000 or more;,
(nxiv) any construction contract; 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
(oxvii) any fidelity other agreement, contract or surety bond commitment that involves $50,000 or completion bond. Xcyte has notmore or is not cancelable without penalty within thirty (30) days.
(b) Except for such alleged breaches, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as defined beloware 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 of the agreementsEnd-User License or any agreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on SCHEDULE 2.12(a) or by which it is bound of the type described in clauses (aSCHEDULE 2.11(b) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) a "CONTRACT"). Each Contract is in such manner full force and effect 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. Following the Effective Time, the Company will 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 payments which the Company would permit any other party otherwise be required to cancel or terminate any such Xcyte Materialpay had the transactions contemplated by this Agreement not occurred.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Citadel Technology Inc), Merger Agreement (Netscape Communications Corp)
Agreements, Contracts and Commitments. (a) Except as filed with set forth on Schedule 2.12(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining 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 em ployee benefit plans or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment agreement with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any agreement with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $15,000,
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(eix) any agreement, contract or commitment agreement containing any covenant limiting the freedom of Xcyte the Company or its present and future affiliated entities to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment agreement relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;15,000,
(gxi) any agreement, contract or commitment currently in force agreement relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 5,000 or more;,
(nxiv) any construction contract; 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
(oxvii) any fidelity other agreement that involves $5,000 or surety bond more or completion bond. Xcyte has notis not cancelable without penalty within thirty (30) days.
(b) Except for such alleged breaches, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as defined beloware 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Schedule 2.12(a) or by which it is bound of the type described in clauses (aSchedule 2.11(g) through (o) above (any such agreement, contract or commitment, an “Xcyte Material a "Contract”) "). Each Contract is in such manner full force and effect and, except as would permit 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 delivered to Parent or its counsel true and complete copies of each Contract, and any other party agreement or document referenced in the Company Schedules or requested by Parent or its counsel.
(c) The Company has performed all services required to cancel 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 terminate 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 Xcyte Materialinvoiced amounts will not be paid.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Smartforce Public LTD Co)
Agreements, Contracts and Commitments. (a) Except as filed with set forth on Schedule 2.15(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment agreement with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any agreement with a firm or other 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;organization,
(cv) any agreement or planplan (other than the Option Plan), including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $5,000,
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte to engage in any line of business or compete with any person;
(f) any agreement, contract or commitment agreement relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;5,000,
(gx) any agreement, contract or commitment currently in force agreement relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxi) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxii) any purchase order or contract for the purchase of raw materials involving $250,000 10,000 or more;,
(nxiii) any construction contract; contracts,
(xiv) 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
(oxvi) any fidelity other agreement that involves $20,000 or surety bond more or completion bond. Xcyte has is not cancelable without penalty within thirty (30) days.
(b) 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, nor to Xcyte’s Knowledge and would not be reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect on the Company, the Company has any other party to an Xcyte Material Contract (as defined below), 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Schedule 2.15(a) or by which it is bound of the type described in clauses (aSchedule 2.14(b) through (o) above (any such agreement, contract or commitment, an “Xcyte Material a "Contract”) "). Each -------- Contract is in such manner full force and effect and, except as would permit otherwise disclosed in Schedule 2.15(b), is not subject to any other default thereunder of which the Company has knowledge by any party obligated to cancel or terminate any such Xcyte Materialthe Company pursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Summit Design Inc)
Agreements, Contracts and Commitments. (a) Except as filed with set forth in Exhibit C, the SEC Company does not have, or contemplated to be transferred is --------- not bound by (other than pursuant to the IP Sale Agreement, Xcyte is not a party to or bound by:applicable law):
(ai) 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, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) 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 guaranty, other than indemnification as set forth in agreements between Xcyte and any of its officers or directors;listed in Exhibit C, ---------
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;25,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 25,000 or more;,
(nxiv) any construction contract; contracts,
(xv) any distribution, joint marketing or development agreement, or
(oxvi) any fidelity other agreement, contract or surety bond commitment that involves $25,000 or completion bond. Xcyte more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 of the agreementsagreement, contracts contract, license or commitments commitment to which Xcyte it is a party party, by which it benefits or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract contract, license or commitment, an “Xcyte Material a "Contract”) "), nor does the Company or any -------- Principal Shareholder 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, except as otherwise disclosed in Exhibit C, is 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 manner as would permit any other party to cancel or terminate any such Xcyte MaterialContracts will remain in effect without modification after the Closing.
Appears in 1 contract
Sources: Merger Agreement (Usweb Corp)
Agreements, Contracts and Commitments. Except as filed with set forth on ------------------------------------- Schedule 2.12, as of the SEC or contemplated to be transferred pursuant to date hereof, the IP Sale Agreement, Xcyte Company is not a party to or bound by:
(a) any collective bargaining agreements,
(b) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations other than reasonable notice provisions of common law,
(c) any bonus, deferred compensation, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans plans, policies or arrangements (including any agreements that contain severance pay);arrangements,
(bd) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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;organization,
(ce) any agreement or plan, including any stock Shares option plan, stock Shares appreciation right rights plan, stock Shares purchase plan plan, or other equity-based planemployee 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(df) any fidelity or surety bond or completion bond,
(g) any lease of personal property having a value individually in excess of $10,000,
(h) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(ei) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;person or entity,
(fj) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;10,000, except as disclosed in Note 10 to the Company Financials,
(gk) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hl) 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 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 agreementscredit, including amendments guaranties referred to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
clause (kh) 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;hereof,
(m) any purchase order or contract for the purchase of raw materials involving $250,000 10,000 or more;,
(n) any construction contract; orcontracts,
(o) any fidelity distribution, joint marketing or surety bond development agreement,
(p) any agreement pursuant to which the Company has granted or completion bond. Xcyte has notmay grant in the future, nor to Xcyte’s Knowledge has any party, a source-code license or option or other right to use or acquire source codes, or
(q) any other party to an Xcyte Material Contract agreement, contract or commitment that involves $10,000 or more or is not cancelable without penalty within thirty (30) days. 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 defined beloware 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 of the agreementsagreement, contracts contract or commitments commitment to which Xcyte the Company is a party or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract or commitment, an “Xcyte Material a "Contract”) "). Each Contract is in such manner full -------- force and effect and, except as would permit otherwise disclosed in Schedule 2.12(b), is not subject to any other party to cancel or terminate any such Xcyte Materialdefault thereunder.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as filed with the SEC (a) The Company does not have, or contemplated to be transferred pursuant to the IP Sale Agreement, Xcyte is not a party to or bound by:
(ai) 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, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) 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 guaranty, other than indemnification as set forth in agreements between Xcyte and any of its officers or directors;listed in Exhibit C, ---------
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;25,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 25,000 or more;,
(nxiv) any construction contract; contracts,
(xv) any distribution, joint marketing or development agreement, or
(oxvi) any fidelity other agreement, contract or surety bond commitment that involves $25,000 or completion bond. Xcyte more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 of the agreementsagreement, contracts contract, license or commitments commitment to which Xcyte it is a party party, by which it benefits or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract contract, license or commitment, an “Xcyte Material 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 manner as would permit any other party to cancel or terminate any such Xcyte MaterialContracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. Except (a) except as filed with set forth on Schedule 2.13(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment agreement with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any agreement with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $20,000,
(viii) any agreement of indemnification or guaranty other than those substantially the same as the agreements of indemnification agreements between Xcyte and any of its officers or directors;guarantees attached hereto as Schedule 2.13(a),
(eix) any agreement, contract or commitment agreement containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment agreement relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;50,000,
(gxi) any agreement, contract or commitment currently in force agreement relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 20,000 or more;,
(nxiv) any construction contract; or
contracts, (oxv) any fidelity distribution, joint marketing or surety bond or completion bond. Xcyte has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses (a) through (o) above (any such development agreement, contract or commitment, an “Xcyte Material Contract”) in such manner as would permit any other party to cancel or terminate any such Xcyte Material,
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Context Integration Inc)
Agreements, Contracts and Commitments. Except as filed with set forth on ------------------------------------- Schedule 2.12(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment agreement with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any a firm or other 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;Company,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $50,000,
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(eix) any agreement, contract or commitment agreement containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment agreement relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;50,000,
(gxi) any agreement, contract or commitment currently in force agreement relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 10,000 or more,
(xiv) any construction contracts,
(xv) any distribution, joint marketing (including any pilot program), development, content provider, destination site or merchant agreement;
(nxvi) any construction contract; 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
(oxvii) any fidelity other agreement that involves $50,000 or surety bond more or completion bondis not cancelable without penalty within thirty (30) days. Xcyte has notExcept for such alleged breaches, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as defined beloware 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Schedule 2.12(a) or by which it is bound of the type described in clauses (aSchedule 2.11(b) through (o) above (any such agreement, contract or commitment, an “Xcyte Material a "Contract”) "). Each -------- Contract is in such manner full force and effect and, except as would permit otherwise disclosed in Schedule 2.12(b), is not subject to any other default thereunder of which the Company has knowledge by any party obligated to cancel or terminate any such Xcyte Materialthe Company pursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Inktomi Corp)
Agreements, Contracts and Commitments. Except as filed with set forth in the SEC or contemplated to be transferred pursuant Exhibits to the IP Sale Company SEC Reports filed prior to the date of this Agreement or on Section 6.19 of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party to, nor are their properties or assets bound by, any Material Contract. For purposes of this Agreement, Xcyte is not a party to or bound by“Material Contract” means:
(ai) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay)collective bargaining agreements;
(bii) any employment, severance, change of control bonus or employee retention agreement, contract, plan or binding commitment;
(iii) any employment or consulting agreement, contract or binding commitment with providing for future compensation or payments in excess of $75,000 in any employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to Xcyte, year not terminable by Xcyte the Company or its Subsidiaries on ninety thirty (9030) days days’ notice without liability, except to the extent general principles of wrongful termination or other employment law may limit Xcytethe Company’s or Subsidiary’s ability to terminate employees Employees at will;
(c) any agreement or plan, including any stock option plan, stock appreciation right plan, stock purchase plan or 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 Stock Purchase or the value of any of the benefits of which will be calculated on the basis of the Stock Purchase;
(div) any agreement of indemnification or guaranty other than not entered into in the ordinary course of business with any party in excess of $50,000 individually or in the aggregate, and any agreement of indemnification agreements or guaranty between Xcyte the Company or its Subsidiaries and any of its officers their officers, directors or directorsEmployees, irrespective of the amount of such agreement or guaranty;
(ev) any agreement, contract or commitment binding commitment, with the exception of the Educational Approvals, containing any covenant directly or indirectly limiting the freedom of Xcyte the Company or its Subsidiaries to engage in any line of business or business, compete with any person, or sell any product, or which, following the consummation of the Merger, would so limit Buyer or the Surviving Company;
(fvi) any agreement, contract or binding commitment relating to capital expenditures and involving future obligations in excess of $100,000 and not cancelable without penalty;
(g) any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(hvii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit (other than extensions of credit in excess the ordinary course of $100,000business from vendors);
(iviii) any joint marketing or development agreementLeases;
(iix) other than in connection with the Merger and other transactions contemplated by this Agreement, any distribution agreement (identifying any that contain exclusivity provisions); (ii) any dealerother agreement, distributor, joint marketing, alliance, joint venture, shareholder, cooperation, development contract or other agreement currently binding commitment which involves payment by the Company or its Subsidiaries of $75,000 or more in force under the aggregate 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 cannot be owned, in whole terminated on thirty (30) days’ notice without cost or in part, by Xcyte; expense to the Company or its Subsidiaries;
(iiix) any agreement, contract or binding commitment currently in force to license any third party to manufacture defining the rights of the security (debt or reproduce any Xcyte product, service or technology equity) holders of the Company or any material of its Subsidiaries;
(xi) any agreement, contract or binding commitment currently in force to sell which the Company or distribute any Xcyte products of its Subsidiaries is a party or service except agreements with distributors to which it is bound relating to the voting of any shares of the capital stock of the Company, 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 capital stock or other agreements, including amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for securities of any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligationsof its Subsidiaries;
(kxii) any other agreement, contract or binding commitment to register the Company’s securities; or
(ixiii) any other agreements, contracts or binding commitments 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 Company or contract for the purchase of raw materials involving $250,000 or more;
(n) any construction contract; or
(o) any fidelity or surety bond or completion bond. Xcyte has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of its Subsidiaries or the terms operation of their respective businesses. The Company has provided or conditions made available to Buyer true and correct copies of any of the agreements, contracts or commitments all Material Contracts as amended to which Xcyte is a party or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) in such manner as would permit any other party to cancel or terminate any such Xcyte Materialdate.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as filed with set forth on Schedule 2.12(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment agreement with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any agreement with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) 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 indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(eix) any agreement, contract or commitment agreement containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment agreement relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;25,000,
(gxi) any agreement, contract or commitment currently in force agreement relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 25,000 or more;,
(nxiv) any construction contract; 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
(oxvii) any fidelity other agreement that involves $25,000 or surety bond more or completion bond. Xcyte has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract is not cancelable without penalty of $10,000 or more within thirty (as defined below), breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any 30) days of the terms or conditions date on which notice of any of the agreements, contracts or commitments to which Xcyte cancellation is a party or by which it is bound of the type described in clauses given.
(a) through (o) above (any such agreement, contract or commitment, an “Xcyte a "Contract"), where such breach, violation or default could have a Material Contract”) Adverse Effect on the Company. Each Contract is in such manner as would permit full force and effect and is not subject to any other default thereunder of which the Company has knowledge by any party obligated to cancel or terminate any such Xcyte Materialthe Company pursuant thereto. Schedule 2.12
Appears in 1 contract
Sources: Merger Agreement (Critical Path Inc)
Agreements, Contracts and Commitments. Except as filed with the SEC (a) The Company does not have, or contemplated to be transferred pursuant to the IP Sale Agreement, Xcyte is not a party to or bound by:
(ai) any bonuscontracts, deferred compensationlicenses and agreements, incentive compensationto which the Company is a party with respect to any Intellectual Property with a value or cost in excess of $25,000, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);than "shrink wrap" and similar commercial end- user licenses.
(bii) either (x) any employment, severance, change of control employment or consulting agreement, contract contract, or commitment with any employee or an employee, individual consultant consultant, or salesperson or (y) any consulting or sales agreement, contract contract, or commitment under which any with a firm or other 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;organization,
(ciii) except as contemplated by Section 1.6(e), any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(div) any fidelity or surety bond or completion bond,
(v) any lease of personal property having a value individually in excess of $20,000,
(vi) any agreement of indemnification indemnification, to hold harmless or guaranty guaranty; or any obligation or liability with respect to infringement or misappropriation by the Company or any other than indemnification agreements between Xcyte and any person of its officers or directors;the Intellectual Property rights of another person,
(evii) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of its current or anticipated business or to compete with any person;,
(fviii) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;10,000,
(gix) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hx) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000;credit,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxi) any purchase order or contract for the purchase of raw materials involving $250,000 20,000 or more;,
(nxii) any construction contract; contracts,
(xiii) any distribution, joint marketing or development agreement, or
(oxiv) any fidelity other agreement, contract or surety bond commitment that involves $25,000 or completion bond. Xcyte more or is not cancelable without penalty within thirty (30) days.
(b) The Company is in compliance with and has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 of the agreementsagreement, contracts contract or commitments commitment described above to which Xcyte it is a party or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract or commitment, an “Xcyte Material a "Contract”) "), nor is the Company or any of the Principal 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 such manner as 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. Following the Effective Time, the Company will 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 payments which the Company would permit any other party otherwise be required to cancel or terminate any such Xcyte Materialpay.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Failure Group Inc)
Agreements, Contracts and Commitments. (a) Except as filed with set forth in Schedule 2.13(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or to, nor is it bound by:
(ai) any collective bargaining 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, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay)arrangements;
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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 willorganization;
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(dvi) any fidelity or surety bond or completion bond;
(vii) any lease of personal property having a value individually in excess of $10,000;
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directorsguaranty;
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty20,000, either individually or in the aggregate;
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprisethe Company’s business;
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000clause (viii) hereof;
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 25,000 or more, either individually or in the aggregate;
(nxiv) any construction contractcontracts;
(xv) any distribution, joint marketing or development agreement; or
(oxvi) any fidelity other agreement, contract or surety bond commitment that involves $25,000 or completion bondmore 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”). Xcyte The Company is in compliance with and has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 Contract, nor do the Company or Sole Shareholder 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 agreements, contracts or commitments Company Disclosure Schedule also denotes each Contract that needs consent from the other party thereto to which Xcyte 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 party or by which it is bound valid and binding agreement of the type described Company, is in clauses (a) through (o) above (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 or for such agreement, contract or commitment, an “Xcyte Material Contract”) Contracts to remain in such manner as would permit any other party to cancel or terminate any such Xcyte Materialeffect without modification after the Closing.
Appears in 1 contract
Sources: Merger Agreement (Comscore, Inc.)
Agreements, Contracts and Commitments. Except as filed with set forth on Schedule 2.12(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment agreement with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any a firm or other 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;Company,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $100,000,
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(eix) any agreement, contract or commitment agreement containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment agreement relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;100,000,
(gxi) any agreement, contract or commitment currently in force agreement relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 25,000 or more;,
(nxiv) any construction contract; 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
(oxvii) any fidelity other agreement that involves $100,000 or surety bond more or completion bondis not cancelable without penalty within thirty (30) days. Xcyte has notExcept for such alleged breaches, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as defined beloware 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Schedule 2.12(a) or by which it is bound of the type described in clauses (aSchedule 2.11(b) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) a "CONTRACT"). Each Contract is in such manner full force and effect and, except as would permit otherwise disclosed in Schedule 2.12(b), is not subject to any other default thereunder of which the Company has knowledge by any party obligated to cancel or terminate any such Xcyte Materialthe Company pursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Informix Corp)
Agreements, Contracts and Commitments. Except as filed with set forth on Schedule 2.12(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $10,000,
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;10,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 10,000 or more;more other than purchases in the ordinary course of business,
(nxiv) any construction contract; contracts,
(xv) any distribution, joint marketing or development agreement, or
(oxvi) any fidelity other agreement, contract or surety bond commitment that involves $10,000 or completion bond. Xcyte has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract more and is not cancelable without penalty within thirty (as defined below), breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses 30) days.
(a) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) a "CONTRACT"). Each agreement, contract or commitment set forth in such manner any of the Company Schedules is in full force and effect and, except as would permit otherwise disclosed in Schedule 2.12(b), is not subject to any other default thereunder of which the Company has knowledge by any party obligated to cancel the Company pursuant thereto. The Company has obtained, or terminate will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any such Xcyte MaterialContract as are required in connection with the Merger.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Network Associates Inc)
Agreements, Contracts and Commitments. (a) Except as filed with set forth on Schedule 3.11, the SEC or contemplated to be transferred pursuant to the IP Sale Agreement, Xcyte is Group Companies are not a party to or bound by, whether written or oral, any Contract that is a:
(ai) Contract involving a potential commitment, payment, loan or investment by any bonusGroup Company (excluding employment Contracts) in excess of an aggregate of $25,000 annually;
(ii) Contract which is not cancelable by any 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 Group Company has mortgaged, deferred compensationpledged, incentive compensation, pension, profit-sharing suffered to exist or retirement plansotherwise placed, or committed to mortgage, pledge, suffer to exist or otherwise place, a Lien (other than a Permitted Lien) on any of its assets or equity interests, or under which any Group Company provides any guaranty of an obligation of a third party, in each case in excess of $25,000;
(iv) Contract which contains any provisions requiring any Group Company to indemnify any other employee benefit plans party (other than (A) obligations to indemnify a party for damage to personal property or arrangements 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 any agreements that contain severance payjoint ventures and minority equity investments);
(bviii) Contract containing any employmentcovenant limiting in any respect the right of 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 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 Group Company has agreed to provide “most favored nation” pricing or 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 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 annually;
(xiii) Contract with any Governmental Authority;
(xiv) Contract with a Material Prescriber or a Material Supplier;
(xv) acquisition agreement, whether by merger, equity interest, asset sale or 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 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 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 $100,000, with the exception of offer letters for “at-will” employment that do not provide for severance, change of control or consulting agreement, contract retention benefits;
(xvii) Contract providing for payment upon the severance or commitment termination of any full-time or part-time Service Provider;
(xviii) Contract with any employee Service Provider containing any noncompetition, nonsolicitation, invention assignment, and/or confidentiality provision, excluding any Contracts disclosed on Schedule 3.11(a)(xvi) or individual consultant 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 salesperson Schedule 3.11(a)(xvii);
(xx) Settlement or separation Contract with any consulting or sales agreement, contract or commitment Service Provider under which any firm or other 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 willGroup Company has any outstanding financial obligations;
(cxxi) any agreement Contract providing for material liquidated damages or planpenalties on event of transfer, including any stock option plan, stock appreciation right plan, stock purchase plan assignment or 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 Stock Purchase or the value of any of the benefits of which will be calculated on the basis of the Stock Purchasedefault;
(dA) any agreement of indemnification or guaranty Licenses In (other than indemnification agreements between Xcyte commercial off the shelf software that is made available for a total cost of less than $25,000) and any of its officers or directors(B) Licenses Out;
(exxiii) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte to engage in any line of business or compete with any person;
(f) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $100,000 and Contract not cancelable without penalty;
(g) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not executed in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprisethat is not otherwise set forth on Schedule 3.11;
(hxxiv) 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 credit in excess of $100,000other price concessions on any pharmaceutical, biological, medical device product, (B) any service fees or (C) any other compensation;
(ixxv) Contract with any joint marketing Governmental Health Care Program or development agreementpayor;
(ixxvi) any distribution agreement (identifying any that contain exclusivity provisions); (ii) any dealerContract with pharmacy providers, distributorHealth Care Professionals, joint marketingphysician practice groups, alliancehospitals, joint ventureclinical laboratories, shareholderDME suppliers, cooperationhome health service providers, development or physical therapy, occupational therapy, skilled nursing facilities, and 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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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 $250,000 or more;
(n) any construction contracthealth care providers; or
(oxxvii) any fidelity Contract not otherwise referred to in this Section 3.11 that if terminated would have or surety bond be reasonably likely to result in a Material Adverse Effect.
(b) The Contracts required to be disclosed on Schedule 3.11, Schedule 3.12 or completion bondSchedule 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). Xcyte Except as disclosed on Schedule 3.11, Schedule 3.12 or Schedule 3.23: (i) no Company Contract has notbeen canceled or, nor to Xcytethe Company’s Knowledge has any 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 an Xcyte Material Contract (as defined below), breached, violated or defaulted be performed by them in connection with the Company Contracts and are not in default under, or received notice that it has breached, violated or defaulted underin breach of, any Company Contract, and no event or condition has occurred or arisen which with the passage of time or the giving of notice or 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, and will continue as such following the consummation of the terms transactions contemplated hereby, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws of general applicability relating to or conditions affecting creditors’ rights and to general principles of any of the agreements, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) in such manner as would permit any other party to cancel or terminate any such Xcyte Materialequity.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as filed with set forth in Section 2.14 of the SEC or contemplated to be transferred pursuant to Disclosure Schedule, the IP Sale AgreementCompany does not have continuing obligations under, Xcyte is not a party to or to, nor is it bound by:
(ai) any collective bargaining agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations, other than as contemplated herein or in the Employment and Non-Competition Agreements and the Employment Agreements;
(iii) any bonus, deferred compensation, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay)arrangements;
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services organization, other than oral agreements terminable at will which consist solely of agreements by the Company to Xcyteemploy any employee, not terminable and corresponding agreements by Xcyte on ninety (90) days notice without liability, except any employee to conduct work for the extent general principles of wrongful termination law may limit Xcyte’s ability to terminate employees at willCompany;
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement, except as provided herein;
(dvi) any fidelity or surety bond or completion bond;
(vii) any lease of personal property having annual lease payments individually in excess of US$10,000;
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any in the ordinary course of its officers or directorsbusiness;
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penaltyUS$10,000 in the aggregate;
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprisethe Company's business;
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000credit, including any guarantees;
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 US$10,000 or more;
(nxiv) any construction contractcontracts;
(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 during the Company's current fiscal year is expected to account for, more than one percent (1%) of the Company's revenue or trade payables; or
(oxvii) any fidelity other agreement, contract or surety bond commitment that involves US$10,000 or completion bond. Xcyte more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 (i) any agreement, contract or commitment set forth in Section 2.14 of the agreementsDisclosure Schedule, contracts or commitments (ii) any other agreement, contract or commitment to which Xcyte it is a party or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) a "CONTRACT"). Each Contract is in such manner full force and effect and is not subject to any default thereunder of which the Company or any of the Principal Securityholders is aware by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing, all necessary consents, waivers and approvals of parties to any Contract as would permit any other party are required in connection with the transactions contemplated hereby and by each of the Related Agreements, or as are required or advisable in order to cancel or terminate any such Xcyte Materialremain in effect without modification after the consummation of the transactions contemplated hereby and thereby.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as filed with the SEC or contemplated to be transferred pursuant to the IP Sale Agreementset forth on Schedule 2.12(a), Xcyte ONElist does not have, is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay)arrangements;
(biv) any employment, severance, change of control material employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any material consulting or sales agreement, contract or commitment under which any firm or other 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 willONElist;
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(dvi) any fidelity or surety bond or completion bond;
(vii) any lease of personal property having a value individually in excess of $50,000;
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directorsguaranty;
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte ONElist to engage in any line of business or to compete with any person;
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty50,000;
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterpriseONElist's business;
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000clause (viii) hereof;
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 50,000 or more;
(nxiv) any construction contractcontracts;
(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
(oxvii) any fidelity other agreement, contract or surety bond commitment that involves $50,000 or completion bond. Xcyte has notmore or is not cancelable without penalty within thirty (30) days.
(b) Except for such alleged breaches, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as defined beloware 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Schedule 2.12(a) or by which it is bound of the type described in clauses (aSchedule 2.11(h) through (o) above (any such agreement, contract or commitment, an “Xcyte Material a "ONElist Contract”) "). Each ONElist Contract is in such manner full force and effect and, except as would permit otherwise disclosed in Schedule 2.12(b), is not subject to any other default thereunder of which ONElist has Knowledge by any party obligated to cancel or terminate any such Xcyte MaterialONElist pursuant thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as filed with set forth on Schedule 2.14(a), the SEC Company does not have any obligations under or contemplated to be transferred pursuant to the IP Sale Agreement, Xcyte is not a party to or otherwise bound by:
(ai) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay)collective bargaining agreements;
(bii) any employment, severance, change of control agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any employment or consulting agreement, agreement or contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreementagreement or contract, contract or commitment under which any a firm or other organization provides services to Xcytethe Company of a nature which would otherwise be customarily provided under an employment or consulting relationship, not terminable by Xcyte on ninety (90) days notice without liability, except pursuant to which the extent general principles Company is obligated to make payments in excess of wrongful termination law may limit Xcyte’s ability to terminate employees at will$25,000 per year;
(civ) any agreement fidelity or plan, including any stock option plan, stock appreciation right plan, stock purchase plan surety bond or 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 Stock Purchase or the value of any of the benefits of which will be calculated on the basis of the Stock Purchasecompletion bond;
(dv) any lease of personal property having a value individually in excess of $25,000;
(vi) any agreement of indemnification or guaranty which could result in liability to the Company in excess of $25,000, individually, other than such indemnification obligations in the Company's software license agreements between Xcyte and any entered into in the ordinary course of its officers or directorsbusiness consistent with past practices;
(e) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte to engage in any line of business or compete with any person;
(fvii) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty25,000 individually;
(gviii) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprisethe Company's business;
(hix) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess clause (viii) 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 $100,00025,000; and excluding extended payment terms offered to customers;
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mx) any purchase order or contract for the purchase of raw materials involving $250,000 25,000 or more;
(nxi) any construction contract;
(xii) 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
(oxiv) any fidelity other agreement, contract or surety bond commitment that involves $25,000 or completion bond. Xcyte has not, nor more or is not cancelable without penalty within thirty (30) days.
(b) Schedule 2.14(b) sets forth a list of the Company's top 15 customers according to Xcyte’s Knowledge has any other party to an Xcyte Material Contract recognized revenue (as defined belowdetermined 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 Contract required to be set forth on Schedule 2.14(a), Schedule 2.14(b) or any Schedule referred to in Schedule 2.13. Each Contract is in full force and effect and, except as otherwise disclosed in Schedule 2.14(c), is not subject to any default thereunder of which the agreements, contracts or commitments Company has knowledge by any party obligated to which Xcyte is a party or by which it is bound of the type Company pursuant thereto. Except as set forth on Schedule 2.8 and except as described in clauses (a) through (o) above (each customer's Contract with the Company, neither the Company nor any such agreement, contract subsidiary has any understandings or commitment, an “Xcyte Material Contract”) obligations of any kind to any customer and has not committed itself to perform any services to any customer that are not so described in such manner as would permit any other party to cancel or terminate any such Xcyte Materialcustomer's Contract.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Edwards J D & Co)
Agreements, Contracts and Commitments. (a) Except as filed with set forth in this Agreement or at Section 3.17 of the SEC or contemplated to be transferred pursuant to Disclosure Schedule (specifying the IP Sale Agreementappropriate paragraph), Xcyte neither the Company nor any of its Subsidiaries is not a party to to, or is bound by:
(ai) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);
(b) any employment, severance, change of control employment or consulting agreement, contract or commitment with any 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 under which any with a firm or other 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 willorganization;
(cii) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan (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 equity-based planrights 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(diii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property having a value in excess of $50,000 individually or $200,000 in the aggregate;
(v) any lease of real property;
(vi) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directorsguaranty;
(e) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte to engage in any line of business or compete with any person;
(fvii) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $25,000 individually or $100,000 and not cancelable without penaltyin the aggregate;
(gviii) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprisethe Company’s business;
(hix) 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 in excess of $100,000credit;
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mx) any purchase order or contract for the purchase of raw materials involving payments in excess of $250,000 20,000 individually or more$100,000 in the aggregate;
(nxi) any construction contractpartnership, 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 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 Contract with any Governmental Entity (a “Government Contract”) or any material federal, state, county, local or foreign governmental consent, license, 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
(oxviii) any fidelity other than customer purchase orders arising in the ordinary course of business to the extent that the purchase or surety bond sale provided for therein has been performed in full on or completion bond. Xcyte has notprior to the date of this Agreement, nor to Xcyte’s Knowledge has any other party agreement, contract or commitment that involves payments in excess of $25,000 individually or $100,000 in the aggregate or more and is not cancelable without penalty within 30 days.
(b) True and complete copies of each Contract set forth (or required to an Xcyte 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 (as defined below)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 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 such Material Contract or any other Contract. To the Knowledge of the agreementsWarrantors, contracts no party obligated to the Company pursuant to any such Material Contract has materially breached, violated or commitments defaulted under such Material Contract, or taken any action or failed to act, such that, with the lapse of time, giving of notice or both, such action or failure to act would constitute such a breach, violation or default under such Material Contract by any such other party, subject to 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 the Company or such Subsidiary prior to the date hereof, and without giving effect to the Acquisition, the Company will fulfill, when due, all of its obligations under the Material Contracts that remain to be performed after the date hereof.
(d) With respect to any Government Contract, there is, as 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 writing to which Xcyte the Company or any of its Subsidiaries is a party which, on the execution or by which it is bound as a result of the type described execution of this Agreement will or may result in clauses (ai) through any third party being relieved of any material obligation or becoming entitled to exercise any right, or (oii) above the Company 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 such agreement, contract material liability or commitment, an “Xcyte Material Contract”) in such manner as would permit obligation of the Company or any other party to cancel of its Subsidiaries being created or terminate any such Xcyte Materialincreased.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as filed with As of the SEC or contemplated to be transferred pursuant to the IP Sale date of this ------------------------------------- Agreement, Xcyte the Company is not a party to or nor is it bound by:
(ai) any collective bargaining agreements,
(ii) any agreements or arrangements that contain any severance pay or similar 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment agreement with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any agreement with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property involving annual payments by the Company in any individual case in excess of $50,000,
(viii) other than pursuant to the Company's standard end-user license agreement (which is attached to the disclosure schedule), any agreement pursuant to which the Company is obligated to provide indemnification or guaranty the indebtedness or liabilities of third parties,
(ix) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directors;
(e) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment agreement relating to capital expenditures and involving future obligations payments required to be made by the Company after the date of this Agreement in excess of $100,000 and not cancelable without penalty;100,000,
(gxi) any agreement, contract or commitment currently in force agreement relating to the disposition or acquisition by the Company after the date of this Agreement of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by or extension of credit by or to the Company, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials (not including in-license of technology) involving $250,000 50,000 or more;,
(nxiv) any construction contractcontracts,
(xv) any distribution, joint marketing or development agreement 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 right to use or acquire source-code, or
(xvii) any other agreement that involves payments by the Company of $100,000 or more; or
(oxviii) any fidelity other agreement that is not cancelable without penalty of $25,000 or surety bond or completion bond. Xcyte has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract more within thirty (as defined below), breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses (a30) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) in such manner as would permit any other party to cancel or terminate any such Xcyte Materialdays.
Appears in 1 contract
Sources: Merger Agreement (Critical Path Inc)
Agreements, Contracts and Commitments. Except as filed with the SEC or contemplated to be transferred pursuant to the IP Sale Agreement, Xcyte (a) The Company is not a party to or to, nor is it bound by:by (other than this Agreement and the Company Ancillary Agreements):
(ai) 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, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) 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 indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(e) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte to engage in any line of business or compete with any person;
(fix) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;25,000,
(gx) any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxi) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxii) any purchase order or contract for the purchase of raw materials involving $250,000 25,000 or more;,
(nxiii) any construction contract; contracts,
(xiv) any distribution, joint marketing or development agreement, or
(oxv) any fidelity other agreement, contract or surety bond commitment that involves $25,000 or completion bond. Xcyte more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 of the agreementsagreement, contracts contract, license or commitments commitment to which Xcyte it is a party or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract contract, license or commitment, an “Xcyte Material a "Contract”) "), nor is the Company 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 all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger so that all such manner as would permit any other party to cancel or terminate any such Xcyte MaterialContracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as filed with set forth in Section 2.17(a) of the SEC or contemplated to be transferred pursuant to Disclosure Schedule (specifying the IP Sale Agreementappropriate subparagraph below), Xcyte neither the Company nor its Subsidiary is not a party to to, or is bound by:
(ai) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or agreement for the distribution of Content to any other employee benefit plans or arrangements (including any agreements that contain severance pay)Channel Outlet;
(bii) any employment, severance, change of control contractor or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or contractor, any consulting or sales agreement, contract or commitment under which 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 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 willorganization;
(ciii) any agreement or plan, including any stock unit option plan, stock unit appreciation right plan, stock purchase rights plan or other equity-based 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(div) any fidelity or surety bond or completion bond;
(v) any lease of personal property having a value in excess of $5,000 individually or $10,000 in the aggregate;
(vi) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directorsguaranty;
(evii) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte to engage in any line of business or compete with any person;
(f) any agreement, contract or commitment Contract relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty5,000 individually or $10,000 in the aggregate;
(gviii) any agreement, contract or commitment currently in force Contract relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprisethe Company’s business;
(hix) 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 in excess of $100,000credit;
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mx) any purchase order or contract for the purchase of raw materials involving in excess of $250,000 5,000 individually or more$10,000 in the aggregate;
(nxi) any construction contractjoint marketing, strategic alliance, affiliate or development agreement; or
(oxii) any fidelity other agreement, contract or surety bond commitment that involves $5,000 individually or completion bond. Xcyte has not$10,000 in the aggregate or more and is not cancelable without penalty within 30 days.
(b) Each Contract to which the Company 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, nor 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 Xcyte’s Knowledge has the Company or its Subsidiary, as applicable, and any other party to an Xcyte Material Contract (as defined below), 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 such Contract, nor, to the knowledge of the agreementsCompany, contracts is any party obligated to the Company or commitments its Subsidiary pursuant to any such Contract subject to any breach, violation or default thereunder, nor has there occurred any event that with the lapse of time, giving of notice or both would constitute such a breach, violation or default by the Company or its Subsidiary or, to the 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 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 fulfilled or will have fulfilled all material obligations required to have been performed by the Company or its Subsidiary, as applicable, prior to the Closing Date pursuant to each Contract to which Xcyte the Company or its Subsidiary is a party or by to which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) in such manner as would permit any other party to cancel or terminate any such Xcyte Materialbound.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as filed with set forth on SCHEDULE 2.12(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte and is not a party to or bound by:
(ai) any collective bargaining agreements,
(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, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other 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;Company,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $50,000,
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;50,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of the business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;of the Company,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 35,000 or more;,
(nxiv) any construction contract; 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
(oxvii) any fidelity other agreement, contract or surety bond commitment that involves $50,000 or completion bondmore or is not cancelable without penalty within thirty (30) days. Xcyte has notExcept for such alleged breaches, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as defined beloware 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 of the agreementsEnd-User License or any agreement, contracts contract or commitments commitment required to which Xcyte is a party or by which it is bound of the type described in clauses (abe set forth on SCHEDULE 2.12(a) through (o) above (any such End-User License or any agreement, contract or commitment, an “Xcyte Material Contract”) a "CONTRACT," it being understood that this representation applies to license agreements, service agreements and management agreements in such manner Company's standard form, which shall constitute Contracts for purposes of this Agreement, but need not be included in SCHEDULE 2.12(a)). Each Contract is in full force and effect and, except as would permit otherwise disclosed in SCHEDULE 2.12(b), is not subject to any other default thereunder of which the Company has knowledge by any party obligated to cancel the Company pursuant thereto. The Company has no agreements with customers or terminate any such Xcyte Materialsuppliers involving credit terms of more than one year.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as filed with (a) As of the SEC or contemplated to be transferred pursuant to the IP Sale date of this Agreement, Xcyte the Company does not have, is not a party to or nor is it bound by:
(ai) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or collective bargaining agreements,
(ii) any other employee benefit plans agreements or arrangements (including any agreements that contain any severance pay);,
(biii) any employment, severance, change of control employment or consulting agreement, contract or commitment (excluding "at will" employment relationships) with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides material 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;Company,
(civ) any agreement fidelity or plan, including any stock option plan, stock appreciation right plan, stock purchase plan surety bond or 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 Stock Purchase or the value of any of the benefits of which will be calculated on the basis of the Stock Purchase;completion bond,
(dv) any lease of personal property having a value individually in excess of $100,000,
(vi) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(e) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte to engage in any line of business or compete with any person;
(fvii) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;100,000,
(gviii) any agreement, contract or commitment currently in force relating to the disposition or acquisition by the Company of material assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hix) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;
clause (iviii) any joint marketing or development agreement;
(i) any distribution agreement (identifying any that contain exclusivity provisions); (ii) any dealerhereof, distributor, joint marketing, alliance, joint venture, shareholder, cooperation, development or other agreement currently in force under which Xcyte has continuing material obligations than advances 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 employees for travel and business expenses in the normal ordinary 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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement consistent with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;past practices,
(k) 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;
(mx) any purchase order or contract for the purchase of raw materials involving $250,000 100,000 or more;,
(nxi) any construction contractcontracts,
(xii) 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
(xiv) any other agreement, contract or commitment that involves $100,000 or more or is not cancelable without penalty within sixty (60) days excluding orders for products received by the Company in the ordinary course of business; or
(oxv) any fidelity agreement, contract or surety bond commitment containing any covenant limiting the freedom of the Company to engage in any line of business or completion bond. Xcyte has notto compete with any person, nor excluding any limitations expressed in the grant to Xcyte’s Knowledge has the Company of any other party to an Xcyte Material Contract Intellectual Property and grants of exclusive territory in overseas distribution agreements
(as defined below)b) The Company is not in material breach, breached, 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Schedule 2.12(a) or by which it is bound of the type described in clauses Schedule 2.11(b), (a) through (o) above (any each such agreement, contract or commitmentcommitment a "CONTRACT"). Each Contract is in full force and effect and, an “Xcyte Material Contract”) except as otherwise disclosed in such manner as would permit Schedule 2.12(b), is not subject to any other default thereunder by any party obligated to cancel or terminate any such Xcyte Materialthe Company pursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Russo Paul M)
Agreements, Contracts and Commitments. (a) Except as filed with set forth in Section 2.12(a) of the SEC or contemplated to be transferred pursuant to Company Disclosure Letter, the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining agreements;
(ii) any Contracts 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 or arrangements (including any agreements that contain severance pay)arrangements;
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment Contract with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract agreement or commitment Contract under which any firm or other 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 willCompany;
(cv) any agreement or plan, including any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase transactions contemplated by this Agreement (or upon the occurrence of any subsequent events) or the value of any of the benefits of which will be calculated on the basis of any of the Stock Purchasetransactions contemplated by this Agreement (or upon the occurrence of any subsequent events);
(dvi) any fidelity or surety bond or completion bond;
(vii) any lease of personal property having a value in excess of $25,000 individually or $50,000 in the aggregate;
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directorsguaranty;
(eix) any agreement, contract or commitment Contract containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;
(fx) any agreement, contract or commitment Contract relating to capital expenditures and involving future obligations payments in excess of $50,000 individually or $100,000 and not cancelable without penaltyin the aggregate;
(gxi) any agreement, contract or commitment currently in force Contract relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or business enterprise other business enterprisethan the sale of inventory in the Ordinary Course of Business;
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000clause (viii) hereof;
(ixiii) any purchase order or Contract for the purchase of raw materials or finished products involving $50,000 or more per order or $100,000 or more in the aggregate to be incurred by the Company following the date of this Agreement;
(xiv) any construction Contracts;
(xv) any distribution, joint marketing or development agreement;
(ixvi) 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 the Company has continuing material obligations to jointly develop any Intellectual Property that will not be owned, in whole granted 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 may grant in the normal course of business cancelable without penalty upon notice of ninety (90) days future, to any party, a source-code license or less and substantially in the form previously provided to Xcyte; or (iv) licenses option or other agreementsright to use or acquire source-code, including amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;or
(kxvii) any other agreement, contract Contract that involves $50,000 or commitment (i) which involve payment more individually or receipt by Xcyte under any such agreement, contract or commitment of $100,000 or more in the aggregate or is not cancelable without penalty within thirty (ii30) that are material to the business operations of Xcyte;days.
(lb) any collective bargaining agreements;
(m) any purchase order or contract for the purchase of raw materials involving $250,000 or more;
(n) any construction contract; or
(o) any fidelity or surety bond or completion bond. Xcyte The Company has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 Contract required to be set forth on Section 2.11 or Section 2.12(a) of the agreements, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses (a) through (o) above Company Disclosure Letter (any such agreementContract, contract or commitment, an a “Xcyte Material Key Contract”). Each Key Contract is in full force and effect and, except as otherwise disclosed in Section 2.12(b) of the Company Disclosure Letter, to the Company’s Knowledge, no party obligated to the Company pursuant to a Key Contract is in such manner as would permit any other party to cancel or terminate any such Xcyte Materialdefault thereunder.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as filed with set forth on Schedule 2.12(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay)arrangements;
(biv) any employment, severance, change of control employment or consulting agreement, agreement or contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreementagreement or contract, contract or commitment under which any a firm or other organization provides services to Xcyte, not terminable by Xcyte on ninety (90) days notice without liability, except the Company pursuant to which the extent general principles Company is obligated to make payments in excess of wrongful termination law may limit Xcyte’s ability to terminate employees at will$20,000 per year;
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or (other equity-based planthan 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(dvi) any fidelity or surety bond or completion bond;
(vii) any lease of personal property having a value individually in excess of $20,000;
(viii) any agreement of indemnification or guaranty (other than indemnification agreements between Xcyte provisions in distribution, reseller and any of its officers or directorsEnd-User Licenses);
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty20,000 individually or $50,000 in the aggregate;
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprisethe Company's business;
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000clause (viii) hereof;
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 20,000 or more;
(nxiv) any construction 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
(oxviii) any fidelity other agreement, contract or surety bond commitment (other than End-User Licenses) that involves $20,000 or completion bond. Xcyte more or is not cancelable without penalty within thirty (30) days.
(b) 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, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Schedule 2.12(a) or by which it is bound of the type described in clauses (aSchedule 2.11(b) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”a "CONTRACT") and each Contract is in such manner full force and effect and, except as would permit otherwise disclosed in Schedule 2.12(c), no Contract is subject to any other material default thereunder of which the Company has knowledge by any party obligated to cancel or terminate any such Xcyte Materialthe Company pursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (New Era of Networks Inc)
Agreements, Contracts and Commitments. Except as filed with set forth in Schedule 2.16(a), the SEC or contemplated to be transferred pursuant to the IP Sale Agreement, Xcyte Company is not currently a party to or nor is it currently bound by:
(a) any collective bargaining agreements;
(b) 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 at will;
(c) any bonus, deferred compensation, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay)arrangements;
(bd) any employment, severance, change of control employment or consulting agreement, contract or commitment agreement with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any a firm or other 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 willCompany;
(ce) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase or the value of any of the benefits of which will be calculated on the basis of the Stock Purchasetransactions contemplated by this Agreement;
(df) any fidelity or surety bond or completion bond;
(g) any lease of personal property having a value individually in excess of $25,000;
(h) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directorsguaranty;
(ei) any agreement, contract or commitment containing any covenant limiting in any respect the freedom right of Xcyte Company to engage in any line of business or to compete with any personperson or granting any exclusive distribution rights;
(fj) any agreement, contract or commitment agreement relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty20,000;
(gk) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company after the date of this Agreement of assets in excess of $25,000 not in the ordinary course of business business, or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise;,
(hl) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit 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 agreementscredit, including amendments guaranties referred to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
clause (kh) 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 agreementshereof;
(m) any purchase order or contract for the purchase of raw materials involving $250,000 25,000 or more;
(n) any construction contract; orcontracts;
(o) any fidelity dealer, distribution, joint marketing (excluding joint marketing agreements: (i) involving financial obligations or surety bond liabilities to the Company; or completion bond(ii) that do not involve rights to sell Company Products to end-users), development, content provider, destination site or 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
(t) any other agreement that involves $25,000 or more or is not cancelable without penalty within thirty (30) days. Xcyte The Company has not, nor to Xcyte’s Knowledge and has any other party to an Xcyte Material Contract (as defined below), breached, violated or defaulted under, or not received notice that it has has, breached, violated or defaulted under, any of the terms or conditions of any of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Schedule 2.16(a), Schedule 2.14(f) or by which it is bound of the type described in clauses (aSchedule 2.14(k) through (o) above (any such agreement, contract or commitment, an “Xcyte Material a "Contract”"), nor has the Company breached, violated or defaulted under any Contract. Each Contract is in full force and effect and, except as otherwise disclosed in Schedule 2.16(b) in such manner as would permit and to the Company's knowledge, is not subject to any other material default thereunder by any party obligated to cancel or terminate any such Xcyte Materialthe Company pursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Zapworld Com)
Agreements, Contracts and Commitments. Except as filed with set forth on ------------------------------------- Schedule 2.17(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining agreements,
(ii) 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,
(iii) any bonus, deferred compensation, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment agreement with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any a firm or other 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;Company,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property obligating the Company to make annual payments in excess of $10,000,
(viii) any agreement of indemnification or guaranty (other than indemnification agreements between Xcyte and any of its officers or directors;as set forth in end-user license agreements),
(eix) any agreement, contract or commitment agreement containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment agreement relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;25,000,
(gxi) any agreement, contract or commitment currently in force agreement relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(ixiii) any joint marketing open purchase order or development agreement;contract involving $25,000 or more,
(ixiv) any distribution agreement construction contracts,
(identifying any that contain exclusivity provisions); (iixv) any dealer, distributordistribution, joint marketingmarketing (including any pilot program), alliancedevelopment, joint venturecontent provider, shareholder, cooperation, development destination site or other agreement currently in force under which Xcyte has continuing material obligations to jointly market any product, technology or service, or merchant agreement,
(xvi) any agreement pursuant to which Xcyte the Company has continuing material obligations granted or may be obligated to jointly develop grant in the future, to any Intellectual Property that will not be ownedparty a source-code license or option or other right to use or acquire source-code, in whole or in part, by Xcyte; including any agreements which provide for source code escrow arrangements,
(iiixvii) any agreementsales representative, contract original equipment manufacturer, value added, remarketer or commitment currently in force 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 license which the Company has advanced or loaned any third party amount to manufacture or reproduce any Xcyte product, service or technology stockholder of the Company or any material agreementdirector, contract officer, employee, or commitment currently in force to sell or distribute any Xcyte products or service except agreements with distributors or sales representative consultant other than business travel advances in the normal ordinary course of business consistent with past practice, or
(xix) any other agreement that involves $25,000 or more in future payments and is not cancelable without penalty upon notice of within ninety (90) days days. Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or less and substantially default with the lapse of time, giving of notice, or both, as are all noted in the form previously provided to Xcyte; or (iv) licenses or other agreements, including amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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 $250,000 or more;
(n) any construction contract; or
(o) any fidelity or surety bond or completion bond. Xcyte has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined belowSchedule 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Schedule 2.17(a), Schedule 2.14(b) or by which it is bound of the type described in clauses (aSchedule 2.14(c) through (o) above (any such agreement, contract or commitment, an “Xcyte Material a "Contract”) "). Each Contract is in such manner full force and -------- effect and, except as would permit otherwise disclosed in Schedule 2.17(b), is not subject to any other default thereunder of which the Company has knowledge by any party obligated to cancel or terminate any such Xcyte Materialthe Company pursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Inktomi Corp)
Agreements, Contracts and Commitments. Except as filed with set forth in Section 2.13 of the SEC or contemplated to be transferred pursuant to Disclosure Schedule, the IP Sale Agreement, Xcyte Company is not a party to or to, nor is bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay)arrangements;
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other 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 willCompany;
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(dvi) 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 indemnification agreements between Xcyte and any of its officers or directorsguaranty;
(e) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte to engage in any line of business or compete with any person;
(fix) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty25,000;
(gx) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprisethe Company’s business;
(hxi) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000clause (viii) hereof;
(ixii) any distribution, joint marketing or development agreement;
(ixiii) any distribution agreement agreements involving payments based on profits or revenues of the Company;
(identifying any that contain exclusivity provisions); (iixiv) any dealer, distributor, joint marketing, alliance, joint venture, shareholder, cooperation, development 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 agreement currently in force under which Xcyte has continuing material obligations to jointly market parties;
(xvi) any product, technology powers of attorney or service, or agency agreements;
(xvii) any agreement pursuant to which Xcyte the Company has continuing material obligations to jointly develop any Intellectual Property that will not be owned, in whole granted 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 may grant in the normal course of business cancelable without penalty upon notice of ninety (90) days future, to any party, a source-code license or less and substantially in the form previously provided to Xcyte; or (iv) licenses option or other agreementsright to use or acquire source-code, including amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;or
(kxviii) any other agreement, contract or commitment (i) which involve payment or receipt by Xcyte under any such agreement, contract or commitment of that could reasonably be expected to require the Company to spend $100,000 25,000 or more in the aggregate or is not cancelable without penalty within thirty (ii30) 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 $250,000 or more;
(n) any construction contract; or
(o) any fidelity or surety bond or completion bonddays. Xcyte The Company has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 or commitment required to be set forth in Section 2.13 of the agreements, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses (a) through (o) above Disclosure Schedule (any such agreement, contract or commitment, an a “Xcyte Material Contract”) ). Each Contract is in such manner full force and effect and, except as would permit otherwise disclosed in Section 2.13 of the Disclosure Schedule, is not subject to any other material default thereunder of which the Company has Knowledge by any party obligated to cancel or terminate any such Xcyte Materialthe Company pursuant thereto. The Company has provided Parent with an accurate and complete copy of each Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as filed with set forth on Section 2.15 of the SEC or contemplated to be transferred pursuant to Disclosure Schedule (specifying the IP Sale Agreementappropriate paragraph), Xcyte the Company is not a party to to, or bound by:
(ai) any bonus(A) employment, deferred compensationcontractor or consulting agreement; (B) Contract or commitment with an Employee, incentive compensation, pension, profit-sharing Consultant or retirement plans, contractor; or any other employee benefit plans or arrangements (including any agreements that contain severance pay);
(bC) any employment, severance, change of control or consulting agreement, contract or commitment with to grant any employee severance or individual consultant termination pay (in cash or salesperson or otherwise) to any consulting or sales agreement, contract or commitment under which any firm or other 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 willEmployee;
(cii) any agreement or plan, including any stock unit option plan, stock unit appreciation right plan, stock purchase rights plan or other equity-based 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(diii) any fidelity or surety bond or completion bond;
(iv) any collective bargaining, union or works council agreements;
(v) any lease of personal property having a value in excess of $25,000 individually or $50,000 in the aggregate;
(vi) any agreement of that imposes surety, guaranty or indemnification or guaranty obligations on the Company (other than indemnification agreements between Xcyte indemnities contained in non-exclusive licenses of Company Products and any Services to customers that have been entered into in the ordinary course of its officers or directorsbusiness consistent with past practice pursuant to the Company Form Agreements);
(evii) Inbound License Agreement (excluding Standard Contracts);
(viii) Outbound License Agreement (excluding Company Form Agreements);
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte to engage in any line of business or compete with any person;
(f) any agreementContract, contract lease or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty25,000 individually or $50,000 in the aggregate;
(gx) any agreement, contract Contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterpriseconsistent with past practice;
(hxi) 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 in excess of $100,000credit;
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxii) any purchase order or contract for the purchase of raw materials involving in excess of $250,000 25,000 individually or more$50,000 in the aggregate;
(nxiii) any construction contractcontracts;
(xiv) any joint marketing, joint venture, partnership, strategic alliance, affiliate or development agreement;
(xv) any agreement, Contract 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
(oxxi) any fidelity other agreement, Contract, lease or surety bond commitment, including any service, operating or completion bondmanagement agreement or arrangement with respect to any Leased Real Property, that involves $25,000 individually or $50,000 in the aggregate or more.
(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. Xcyte The Company is in material compliance with, and has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 such Contract, nor, to the Knowledge of the agreementsCompany, contracts is any party obligated to the Company pursuant to any such Contract subject to any breach, violation or commitments default thereunder, nor, to which Xcyte is a party or by which it is bound the Knowledge of the type described in clauses (a) through (o) above (Company, has event occurred that with the lapse of time, giving of notice or both would constitute such a breach, violation or default by the Company or any such agreementother party. True, contract correct and complete copies of each Contract disclosed in the Disclosure Schedule or commitment, an “Xcyte Material Contract”) in such manner as would permit any other party required to cancel or terminate any such Xcyte Materialbe disclosed pursuant to this
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as filed with set forth in Section 2.14(a) of the SEC or contemplated to be transferred pursuant to Company Disclosure Schedule, the IP Sale AgreementCompany does not have any continuing obligations under, Xcyte is not a party to or is not bound by:
(ai) any collective bargaining agreements, or any contract with or commitment to any trade unions, employee bargaining agent or affiliated bargaining agent (collectively, "labor representatives") and the Company has not --------------------- conducted any negotiations with respect to any such future contracts or commitments,
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations or is otherwise required by statute or case law to provide any of the foregoing,
(iii) any bonus, deferred compensation, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock share appreciation right plan, stock purchase rights plan or other equity-based share 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement, except as provided herein,
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having annual lease payments individually in excess of $ 2,000,
(viii) any agreement of indemnification or guaranty guaranty, other than intellectual property indemnification agreements between Xcyte and any to customers in the ordinary course of its officers or directors;business,
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;2,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials materials, other than purchase orders made in the ordinary course of business and involving not more than $250,000 or more;2,000
(nxiv) any construction contract; contracts,
(xv) any distribution, joint marketing or development agreement,
(xvi) any agreement, contract or commitment with any customer which accounted for, or is expected to account during the Company's current fiscal year, for more than 5% of the Company's revenue, or
(oxvii) any fidelity other agreement, contract or surety bond commitment that involves $2,000 or completion bond. Xcyte more or is not cancelable without penalty within thirty (30) days.
(b) Except as noted in Section 2.14(b) of the Company Disclosure Schedule, the Company has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 (i) any agreement, contract or commitment required to be set forth in Section 2.14(a) of the agreementsCompany Disclosure Schedule, contracts or commitments (ii) any other material agreement, contract or commitment to which Xcyte it is a party or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract or commitmentcommitment referenced in the preceding clauses (i) and (ii), an “Xcyte Material a "Contract”"), nor is either Shareholder or the -------- Company 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, except as otherwise disclosed in Section 2.14(b) of the Company Disclosure Schedule, is not subject to any default thereunder, of which Shareholder or the Company is aware, by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Exchange Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in such manner as would permit any other party connection with the Share Exchange or to cancel or terminate any such Xcyte Materialremain in effect without modification after the Share Exchange.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as filed with set forth in Section 2.15 of the SEC or contemplated to be transferred pursuant to Disclosure Schedule (specifying the IP Sale Agreementappropriate subparagraph), Xcyte the Company is not a party to or to, nor is it bound by:by any of the following (each, a “Material Contract”):
(a) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);
(bi) any employment, severance, change of control contractor or consulting agreement, contract or commitment with any an employee or individual consultant consultant, contractor or salesperson salesperson, or any consulting consulting, services or sales agreement, contract contract, or commitment under which any firm or other organization provides services to Xcyte, that is either (a) not terminable by Xcyte on ninety the Company at will and without penalty, or (90b) days notice without liability, except to the extent general principles has a value in excess of wrongful termination law may limit Xcyte’s ability to terminate employees at will$100,000;
(cii) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(diii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property or equipment having a value in excess of $50,000 individually or $250,000 in the aggregate;
(v) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directorsguaranty;
(e) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte to engage in any line of business or compete with any person;
(fvi) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty50,000 individually or $250,000 in the aggregate;
(gvii) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporationthe Company’s business, partnership, joint venture or other business enterpriseconsistent with past practices;
(hviii) 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 credit;
(ix) any purchase order, contract or other commitment obligating the Company to purchase materials or services at a cost in excess of $100,00050,000 individually or $250,000 in the aggregate;
(ix) any joint marketing agreement containing covenants or development agreementother 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;
(ixi) any distribution agreement providing a customer with refund rights;
(identifying any that contain exclusivity provisions); (iixii) any dealer, distributordistribution, joint marketing, alliance, joint venture, shareholder, cooperation, development or joint venture agreement which requires payment in excess of $50,000 individually or $250,000 in the aggregate;
(xiii) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, distributor, reseller, or independent software vendor, or other agreement currently in force under which Xcyte has continuing material obligations to jointly market for use or distribution of any product, technology or service, or Company Product;
(xiv) any agreement other contracts and licenses pursuant to which Xcyte the Company has continuing material obligations granted rights 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 in any Company Product that involves in excess of $50,000 individually;
(xv) any contracts, licenses and agreements to manufacture which the Company is a party with respect to any Content & Technology or reproduce Intellectual Property Rights, including without limitation any Xcyte productin-bound licenses, service out-bound licenses and cross-licenses, but excluding (A) Shrink Wrap Code that is neither (1) incorporated into, or technology combined or distributed in conjunction with any material agreementCompany Product, contract nor (2) used in connection with the development, support or commitment currently in force to sell or distribute maintenance of any Xcyte products or service except Company Product, and (B) standard, end-user customer agreements with distributors or sales representative entered in the normal ordinary course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Xcytenot covered by Section 2.15(a)(xiv); or (iv) licenses or other agreements, including amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;or
(kxvi) any other agreement, contract or commitment that involves $50,000 individually and is not cancelable by the Company without penalty within ninety (i90) 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;days.
(lb) any collective bargaining agreements;
(mExcept as set forth in Section 2.15(b)(i) any purchase order or contract for of the purchase of raw materials involving $250,000 or more;
(n) any construction contract; or
(o) any fidelity or surety bond or completion bond. Xcyte Disclosure Schedule, the Company is in compliance in all material respects with, and has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 Material Contract, nor does the Company have any Knowledge of any event that would constitute such a material breach, violation or default with the lapse of time, giving of notice or both, nor to the Knowledge of the agreements, contracts or commitments Company is any party obligated to which Xcyte is a party or by which it is bound the Company pursuant to any such Material Contract subject to any default thereunder. Except as set forth in Section 2.15(b)(i) of the type described Disclosure Schedule, each Material Contract is in clauses (a) through (o) above (full force and effect except to the extent that the same 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. There is no material dispute regarding any such agreement, contract or commitment, an “Xcyte 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) in of the Disclosure Schedule, no Material Contract will terminate, or may be terminated by the counterparty thereto, solely by the passage of time or at the election of such manner counterparty within one hundred twenty (120) days after the Closing. To the Knowledge of the Company, as would permit any other of the date hereof, no party to cancel a Material Contract has any intention of terminating such Material Contract with the Company or terminate any reducing the volume of business such Xcyte Materialparty conducts with the Company, whether as a result of the Merger or otherwise.
Appears in 1 contract
Sources: Merger Agreement (Gartner Inc)
Agreements, Contracts and Commitments. Except as filed with the SEC or contemplated to be transferred pursuant to the IP Sale Agreement, Xcyte is not a party to or bound by:
(a) any bonusSection 2.13(a) of the Company Disclosure Schedule lists the following Company Contracts in effect as of the date of this Agreement (each, deferred compensationa “Company Material Contract” and collectively, incentive compensationthe “Company Material Contracts”): (i) a Company Contract, pensionother than a Company Employee Plan, profit-sharing or retirement plansrequiring 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 other employee benefit plans or arrangements (Person, including any agreements that contain severance pay);
(b) any employmentemployee, severance, change of control or consulting agreement, contract or commitment with any employee or individual consultant or salesperson independent contractor, or any entity providing employment-related, consulting or sales agreement, contract or commitment under which any firm or other organization provides services to Xcyteindependent contractor services, not terminable by Xcyte the Company on ninety (90) days 90 calendar days’ or less notice without liability, except to the extent general principles of wrongful termination law may limit Xcytethe Company’s ability to terminate employees at will;
; (cii) a Company Contract, other than the Company Employee Plans or the Company Stock Plan, relating to any agreement or plan, including any stock option plan, stock appreciation right plan, plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;
Contemplated Transactions; 20 Exhibit 2.1 (diii) a Company Contract relating to any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any not entered into in the Ordinary Course of its officers or directors;
Business; (eiv) any agreement, contract or commitment a Company Contract containing (A) any covenant limiting the freedom of Xcyte the Company or the Surviving Corporation to engage in any line of business or compete with any person;
Person, (fB) 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 obligations requiring payments after the date of this Agreement in excess of $100,000 250,000 pursuant to its express terms and not cancelable without penalty;
; (gvi) any agreement, contract or commitment currently in force a Company Contract relating to the disposition or acquisition of material assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
Entity since the Company’s incorporation; (hvii) 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 in excess of $100,000;
250,000 or creating any material Encumbrances with respect to any assets of the Company or any loans or debt obligations with officers or directors of the Company; (iviii) any joint marketing a Company Contract requiring payment by or development agreement;
to the Company after the date of this Agreement in excess of $250,000 pursuant to its express terms relating to: (iA) any distribution agreement (identifying any that contain exclusivity provisions); (iiB) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company; (C) any dealer, distributor, joint marketing, alliance, joint venture, shareholder, cooperation, development or other agreement currently in force under which Xcyte the Company has continuing material obligations to jointly develop or market any product, technology or service, or any agreement pursuant to which Xcyte the Company has continuing material obligations to jointly develop any Intellectual Property that will not be owned, in whole or in part, by Xcytethe Company; or (iiiD) any agreement, contract or commitment currently in force Contract to license any third party to manufacture or reproduce produce any Xcyte product, service or technology of the Company or any material agreementContract to sell, contract distribute or commitment currently in force to sell or distribute commercialize any Xcyte products or service except agreements with distributors or sales representative in of 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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, exceptCompany, in each case, except for Company Contracts entered into in the Ordinary Course of Business; (ix) a Company Contract with any agreement Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to the Company in connection with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
the Contemplated Transactions; (kx) a Company Real Estate Lease; or (xi) any other agreementCompany Contract that is not terminable at will (with no penalty or payment) by the Company, contract or commitment and (iA) which involve involves payment or receipt by Xcyte the Company after the date of this Agreement under any such agreement, contract or commitment of more than $100,000 or more 250,000 in the aggregate aggregate, or obligations after the date of this Agreement in excess of $250,000 in the aggregate, or (iiB) that are is material to the business or operations of Xcyte;the Company. 21 Exhibit 2.1
(lb) any collective bargaining agreements;
(mThe 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) any purchase order or contract for of the purchase of raw materials involving $250,000 or more;
(n) any construction contract; or
(o) any fidelity or surety bond or completion bondCompany Disclosure Schedule, there are no Company Material Contracts that are not in written form. Xcyte The Company has not, nor and to Xcytethe Company’s Knowledge has any Knowledge, as of the date of this Agreement no other party to an Xcyte a Company Material Contract (as defined below)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 of the agreements, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract or commitment, an “Xcyte Company Material Contract”) Contract in such manner as would permit any other party to cancel or terminate any such Xcyte MaterialCompany Material Contract, or would permit any other party to seek damages which would reasonably be expected to have a Company Material Adverse Effect. As to the Company, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to the Company under any Company Material Contract or any other material term or provision of any Company Material Contract.
Appears in 1 contract
Sources: Merger Agreement
Agreements, Contracts and Commitments. Except for Employee Plans (as filed with defined in Section 2.21), as contemplated by this Agreement or as set forth on Schedule 2.12, the SEC or contemplated to be transferred pursuant to the IP Sale Agreement, Xcyte Company does not have and is not a party to or bound byto:
(a) any collective bargaining agreement;
(b) any agreements that contain any unpaid severance liabilities or obligations;
(c) any bonus, deferred compensation, incentive compensation, pension, profit-profit- sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay)arrangements;
(bd) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to Xcyte, not terminable by Xcyte the Company on ninety (90) days 30 days' notice without liability, liability except to the extent applicable local law and/or general principles of wrongful termination law may limit Xcyte’s the Company's ability to terminate employees at willsuch employees;
(ce) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(df) any fidelity or surety bond or completion bond;
(g) any lease of personal property;
(h) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directorsguaranty;
(ei) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or compete with any person;
(fj) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $100,000 and not cancelable without penaltyobligations;
(gk) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(hl) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit 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 agreementscredit, including amendments guaranties referred to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
clause (kh) 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 agreementshereof;
(m) any purchase order or contract for the purchase of raw materials involving $250,000 or moreacquisition of assets;
(n) any construction contract; orcontracts;
(o) any fidelity distribution, joint marketing or surety bond or completion bond. Xcyte has not, nor to Xcyte’s Knowledge has development agreement; or
(p) any other party to an Xcyte Material Contract (as defined below), breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”commitment which involves $5,000 or more and is not cancelable without penalty within thirty (30) in such manner as would permit any other party to cancel or terminate any such Xcyte Materialdays.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Epic Design Technology Inc /Ca/)
Agreements, Contracts and Commitments. (a) Except as filed with set forth in Section 2.15 of the SEC or contemplated to be transferred pursuant to Disclosure Schedule (specifying the IP Sale Agreementappropriate subparagraph), Xcyte the Company is not a party to or to, nor is it bound by:by any of the following (each, a “Material Contract”):
(a) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);
(bi) any employment, severance, change of control contractor or consulting agreement, contract or commitment with any an employee or individual consultant consultant, contractor or salesperson salesperson, or any consulting consulting, services or sales agreement, contract contract, or commitment under which any firm or other organization provides services to Xcyte, that is not terminable by Xcyte on ninety (90) days notice the Company at will and without liability, except to the extent general principles of wrongful termination law may limit Xcyte’s ability to terminate employees at willpenalty;
(cii) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(diii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property or equipment having a value in excess of $50,000 individually or $250,000 in the aggregate;
(v) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty other than indemnification 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 between Xcyte with its distributors and any resellers that have been entered into in the ordinary course of its officers business, consistent with past practices, substantially in the Company’s standard form of distributor or directorsreseller agreement;
(e) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte to engage in any line of business or compete with any person;
(fvi) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty50,000 individually or $250,000 in the aggregate;
(gvii) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporationthe Company’s business, partnership, joint venture or other business enterpriseconsistent with past practices;
(hviii) 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 credit;
(ix) any purchase order, contract or other commitment obligating the Company to purchase materials or services at a cost in excess of $100,00050,000 individually or $250,000 in the aggregate;
(ix) any joint marketing agreement containing covenants or development agreementother 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;
(ixi) any distribution agreement providing a customer with refund rights;
(identifying any that contain exclusivity provisions); (iixii) any dealer, distributordistribution, joint marketing, alliance, joint venture, shareholder, cooperation, development or joint venture agreement which requires payment in excess of $50,000 individually or $250,000 in the aggregate;
(xiii) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, distributor, reseller, or independent software vendor, or other agreement currently in force under which Xcyte has continuing material obligations to jointly market any productfor use or distribution of the products, 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; services of the Company;
(iiixiv) 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 contracts and substantially in the form previously provided to Xcyte; or (iv) licenses or other agreementslicenses, including amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement out-bound licenses with respect to which Xcyte does not have any payment obligations the Company’s products, other than immaterial payment obligationsagreements 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);
(kxv) any contracts, licenses and agreements to which the Company is a party with respect to any Technology or Intellectual 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 (i) which involve payment that involves $50,000 individually or receipt by Xcyte under any such agreement, contract or commitment of $100,000 or more 250,000 in the aggregate or more and is not cancelable by the Company without penalty within ninety (ii90) that are material to the business operations of Xcyte;days.
(lb) any collective bargaining agreements;
(mExcept as set forth in Section 2.15(b)(i) any purchase order or contract for of the purchase of raw materials involving $250,000 or more;
(n) any construction contract; or
(o) any fidelity or surety bond or completion bond. Xcyte Disclosure Schedule, the Company is in compliance in all material respects with, and has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 Material Contract, nor does the Company have any Knowledge of any event that would constitute such a material breach, violation or default with the lapse of time, giving of notice or both. Except as set forth in Section 2.15(b)(i) of the agreementsDisclosure Schedule, contracts or commitments each Material Contract is in full force and effect, and the Company is not subject to which Xcyte is a party or by which it is bound any default thereunder, nor to the Knowledge of the type described in clauses (a) through (o) above (Company is any party obligated to the Company pursuant to any such agreement, contract or commitment, an “Xcyte Material Contract subject to any default thereunder. There 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) in such manner as would permit any other of the Disclosure Schedule, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the 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 cancel a Material Contract has any intention of terminating such Material Contract with the Company or terminate any reducing the volume of business such Xcyte Materialparty conducts with the Company, whether as a result of the Merger or otherwise.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as filed with set forth on Schedule 2.12(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other 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;Company,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value in excess of $5,000 individually or $10,000 in the aggregate,
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;20,000 individually or $50,000 in the aggregate,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials and/or supplies involving $250,000 20,000 or more;,
(nxiv) any construction contract; 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
(oxviii) any fidelity other agreement, contract or surety bond commitment that involves $20,000 individually or completion bond. Xcyte has not$50,000 in the aggregate or more and is not cancelable without penalty within thirty (30) days.
(b) Except for such alleged breaches, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as defined beloware 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Schedule 2.12(a) or by which it is bound of the type described in clauses (aSchedule 2.11(g) through (o) above (any such agreement, contract or commitment, an “Xcyte Material a "Contract”) "). Each Contract is in such manner full force and effect and, except as would permit otherwise disclosed in Schedule 2.12(b), is not subject to any other default thereunder of which the Company has knowledge by any party obligated to cancel or terminate any such Xcyte Materialthe Company pursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Cypress Semiconductor Corp /De/)
Agreements, Contracts and Commitments. Except as filed with the SEC or contemplated to be transferred pursuant to the IP Sale Agreementset forth on Schedule 7.1.12, Xcyte Transferor does not have, is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $5,000,
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte Transferor to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;5,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;Transferor's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 10,000 or more;more other than purchases in the ordinary course of business,
(nxiv) any construction contract; contracts,
(xv) any distribution, joint marketing or development agreement, or
(oxvi) any fidelity other agreement, contract or surety bond commitment that involves $5,000 or completion bond. Xcyte more and is not cancelable without penalty within thirty (30) days.
(xvii) 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, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 of the agreementsagreement, contracts contract or commitments commitment to which Xcyte it is a party or by which it is bound of the type described and which are required to be set forth in clauses (a) through (o) above Schedule 7.1.12 (any such agreement, contract or commitment, an “Xcyte a "CONTRACT") except for breaches, violations or defaults that will not have a Material Contract”) Adverse Effect. Each agreement, contract or commitment set forth in such manner any of Transferor Schedules is in full force and effect and, except as would permit otherwise disclosed in Schedule 3.12(b), is not subject to any other default thereunder of which Transferor has knowledge by any party obligated to cancel or terminate any such Xcyte MaterialTransferor pursuant thereto.
Appears in 1 contract
Sources: Asset Purchase Agreement (Alternative Construction Company, Inc.)
Agreements, Contracts and Commitments. Except as filed with the SEC or contemplated to be transferred pursuant to the IP Sale Agreementset forth on Schedule 3.12(a), Xcyte Parent does not have, is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other 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;Parent,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) 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 indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte Parent to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;25,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Parent's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 25,000 or more;,
(nxiv) any construction contract; 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
(oxvii) any fidelity other agreement, contract or surety bond commitment that involves $25,000 or completion bondmore or is not cancelable without penalty within thirty (30) days. Xcyte has notExcept for such alleged breaches, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as defined beloware 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Schedule 3.12(a) or by which it is bound of the type described in clauses (aSchedule 3.11(b) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) a "PARENT CONTRACT"). Each Parent Contract is in such manner full force and effect and, except as would permit otherwise disclosed in Schedule 3.12(b), is not subject to any other default thereunder of which Parent has Knowledge by any party obligated to cancel or terminate any such Xcyte MaterialParent pursuant thereto.
Appears in 1 contract
Sources: Merger Agreement (Healtheon Corp)
Agreements, Contracts and Commitments. Except as filed with set forth on SCHEDULE 2.12(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay)arrangements;
(biv) any employment, severance, change of control employment or consulting agreement, agreement or contract or commitment with any an employee or individual consultant or salesperson or any consulting agreement or sales agreementcontract, contract or commitment under which any a firm or other organization provides services to Xcyte, not terminable by Xcyte on ninety (90) days notice without liability, except the Company pursuant to which the extent general principles Company is obligated to make payments in excess of wrongful termination law may limit Xcyte’s ability to terminate employees at will$30,000 per year;
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(dvi) any fidelity or surety bond or completion bond;
(vii) any lease of personal property having a value individually in excess of $30,000;
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directorsguaranty;
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty25,000 individually or $40,000 in the aggregate;
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprisethe Company's business;
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000clause (viii) hereof;
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 35,000 or more;
(nxiv) any construction 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
(oxvii) any fidelity other agreement, contract or surety bond commitment that involves $35,000 or completion bondmore or is not cancelable without penalty within thirty (30) days. Xcyte SCHEDULE 2.12(a) 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 notan 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, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below1999, 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on SCHEDULE 2.12(a) or by which it is bound of the type described in clauses (aSCHEDULE 2.11(b) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”a "CONTRACT"). Each Contract is in full force and effect 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. SCHEDULE 2.12(c) in such manner as would permit lists all contracts, licenses and agreements between the Company and any other party person wherein the Company has agreed to, or assumed, any material obligation or material duty to cancel warrant, indemnify, reimburse, hold harmless, guaranty or terminate otherwise assume or incur any material obligation or liability or provide a right of rescission with respect to the infringement or misappropriation by the Company or such Xcyte Materialother 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, store, process, calculate or present calendar dates falling on and after (and if applicable, spans of time including) January 1, 2000, they do so accurately and calculate any information dependent on or relating to such dates in the same manner, and with the 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 dates (collectively, "YEAR 2000 COMPLIANT"). All of the products currently offered by the Company (i) will lose no functionality with respect to the introduction of records containing dates falling on or after January 1, 2000. All of the Company's internal computer and technology products and systems are Year 2000 Compliant.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as filed with Other than those listed in Section 2A.12 of the SEC or contemplated to be transferred pursuant to Partnership Disclosure Schedule, the IP Sale AgreementPartnership does not have, Xcyte is not a party to or nor is it bound by:
(a) any collective bargaining agreements,
(b) any agreements that contain any unpaid severance liabilities or obligations,
(c) any bonus, deferred compensation, incentive compensation, option, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);arrangements,
(bd) any employment, severance, change of control employment or consulting agreement, contract or commitment (other than employment letters) with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to Xcyteorganization, not terminable by Xcyte the Partnership on ninety (90) thirty days notice without liability, except to the extent general principles of wrongful termination law may limit Xcyte’s ability to terminate employees at will;,
(ce) any agreement insurance policy, fidelity or plan, including any stock option plan, stock appreciation right plan, stock purchase plan surety bond or other equity-based plan, any completion bond not listed in Section 2A.20 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 Stock Purchase or the value of any of the benefits of which will be calculated on the basis of the Stock Purchase;Partnership Disclosure Schedule,
(df) any lease of personal property having a value individually in excess of $25,000,
(g) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any not entered into in the ordinary course of its officers or directors;business,
(eh) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Partnership to engage in any line of business or compete with any person;Person,
(fi) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $100,000 and not cancelable without penalty;25,000,
(gj) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;,
(hk) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit 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 agreementscredit, including amendments guaranties referred to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
clause (kg) 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;hereof,
(l) any collective bargaining agreements;
(m) any purchase order or contract for the purchase of raw materials or acquisition of assets involving $250,000 25,000 or more;more in any single instance or $100,000 or more in the aggregate,
(m) any construction contracts involving $25,000 or more in any single instance or $100,000 or more in the aggregate,
(n) any construction contract; ordistribution, joint marketing or development agreement,
(o) any fidelity lease for switches or surety bond or completion bond. Xcyte has not, nor to Xcyte’s Knowledge has any other party machinery, equipment or other personal property involving payment of aggregate rentals in excess of $25,000,
(p) any contract pursuant to an Xcyte Material Contract 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,
(as defined belowq) 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 which involves $25,000 or more and is not cancelable without penalty within thirty (30) days, or
(u) any agreement which is otherwise material to the Partnership's business. The 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 of the agreementsmaterial agreement, contracts contract or commitments commitment to which Xcyte is a party or by which it is bound (including, but not limited to, those set forth in Section 2A.12 or any other section of the type described in clauses (a) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”Partnership Disclosure Schedule) in such manner as would permit any other party to cancel or terminate the same. Each agreement, contract or commitment to which the Partnership is a party and that is required to be set forth in the Partnership Disclosure Schedule is in full force and effect and, except as otherwise disclosed, is not subject to any such Xcyte Materialmaterial default thereunder by any party thereto. The Partnership is not bound by any material contract, agreement, license, lease or other commitment, a copy of which has not 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 decrease the rate of supplying or purchasing materials, products, or services to or from the Partnership, as a result of the Mergers or the Interest Exchange. Except as described in Section 2A.4, no consents, waivers or approvals under any of 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 breach, default or right of termination or other right as a result of the Mergers or the Interest Exchange.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as filed with the SEC or contemplated to be transferred pursuant to the IP Sale Agreementset forth on Schedule 2.12(a), Xcyte Company does not have, is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $15,000,
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;15,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 15,000 or more;more other than purchases in the ordinary course of business,
(nxiv) any construction contract; contracts,
(xv) any distribution, joint marketing or development agreement, or
(oxvi) any fidelity other agreement, contract or surety bond commitment that involves $15,000 or completion bond. Xcyte has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract more and is not cancelable without penalty within thirty (as defined below), breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses 30) days.
(a) through (o) above (any such agreement, contract or commitment, an “Xcyte a "CONTRACT") except for breaches, violations or defaults that will not have a Material Contract”) Adverse Effect. Each agreement, contract or commitment set forth in such manner any of Company Schedules is in full force and effect and, except as would permit otherwise disclosed in Schedule 2.12(b), is not subject to any other default thereunder of which Company has knowledge by any party obligated to cancel or terminate any such Xcyte MaterialCompany pursuant thereto.
Appears in 1 contract
Sources: Merger Agreement (Netrix Corp)
Agreements, Contracts and Commitments. (a) Except as filed with set forth in Section 2.15 of the SEC or contemplated to be transferred pursuant to Disclosure Schedule (specifying the IP Sale Agreementappropriate subparagraph), Xcyte the Company is not a party to or to, nor is it bound by:by any of the following (each, a “Material Contract”):
(a) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);
(bi) any employment, severance, change of control contractor or consulting agreement, contract or commitment with any an employee or individual consultant consultant, contractor or salesperson salesperson, or any consulting consulting, services or sales agreement, contract contract, or commitment under which any firm or other organization provides services to Xcyte, that is either (a) not terminable by Xcyte on ninety the Company at will and without penalty, or (90b) days notice without liability, except to requires payments by the extent general principles Company in any calendar year in excess of wrongful termination law may limit Xcyte’s ability to terminate employees at will$50,000;
(cii) other than the Plan and agreements entered into thereunder in connection with Company Options and Company SARs, any agreement or plan, including any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(diii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property or equipment requiring payments by the Company in excess of $50,000 individually or $250,000 in the aggregate in any calendar year;
(v) any agreement of indemnification or guaranty guaranty, other than indemnification agreements between Xcyte and similar provisions contained in any agreement entered into in the ordinary course of its officers or directorsbusiness, consistent with past practice, on the Company’s standard form without material modification;
(e) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte to engage in any line of business or compete with any person;
(fvi) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments by the Company in excess of $100,000 and not cancelable without penalty50,000 individually or $250,000 in the aggregate in any calendar year;
(gvii) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporationthe Company’s business, partnership, joint venture or other business enterpriseconsistent with past practices;
(hviii) 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 credit;
(ix) any purchase order, contract or other commitment obligating the Company to purchase materials or services at a cost in excess of $100,00050,000 individually or $250,000 in the aggregate in any calendar year;
(ix) any joint marketing agreement containing covenants or development agreementother 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;
(ixi) any distribution 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;
(identifying any that contain exclusivity provisions); (iixii) any dealer, distributordistribution, joint marketing, alliance, joint venture, shareholder, cooperation, 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 sales representative, original equipment manufacturer, manufacturing, value added, remarketer, distributor, reseller, or independent software vendor, or other agreement currently in force under which Xcyte has continuing material obligations to jointly market for use or distribution of any product, technology or service, or Company Product;
(xiv) any agreement other contracts and licenses pursuant to which Xcyte the Company has continuing material obligations granted rights 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 in any Company Product that involves payment to manufacture or reproduce the Company in excess of $50,000 individually;
(xv) any Xcyte productcontracts, service or technology or any material agreement, contract or commitment currently in force licenses and agreements to sell or distribute any Xcyte products or service except agreements with distributors or sales representative in which 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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement Company is a party with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;Content & Technology or Intellectual 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
(kxvi) any other agreement, contract or commitment (i) which involve that requires payment or receipt by Xcyte under the Company in any such agreement, contract or commitment calendar year in excess of $100,000 or more in 50,000 and is not cancelable by the aggregate or Company without penalty within ninety (ii90) that are material to the business operations of Xcyte;days.
(lb) any collective bargaining agreements;
(mExcept as set forth in Section 2.15(b)(i) any purchase order or contract for of the purchase of raw materials involving $250,000 or more;
(n) any construction contract; or
(o) any fidelity or surety bond or completion bond. Xcyte Disclosure Schedule, the Company is in compliance in all material respects with, and has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 Material Contract, nor does the Company have any 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. Except as set forth in Section 2.15(b)(i) of the agreementsDisclosure Schedule, contracts or commitments each Material Contract is in full force and effect, and the Company is not subject to which Xcyte is a party or by which it is bound any default thereunder, nor to the Knowledge of the type described in clauses (a) through (o) above (Company is any party obligated to the Company pursuant to any such agreement, contract or commitment, an “Xcyte Material Contract subject to any default thereunder. There 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) in such manner as would permit any other of the Disclosure Schedule, no Material Contract will terminate, or may be terminated by either party, solely by the passage of time or at the election of either party within ninety (90) days after the Closing. To the Knowledge of the Company, no party to cancel a Material Contract has provided the Company with notice of their intention to terminate such Material Contract with the Company or terminate any to materially reduce the volume of business such Xcyte Materialparty conducts with the Company, whether as a result of the Merger or otherwise.
Appears in 1 contract
Agreements, Contracts and Commitments. Except As of the date hereof, except as filed with set forth on Schedule 2.16(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(a) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay)collective bargaining agreements;
(b) any employment, severance, change of control 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 any consulting or sales agreement, contract or commitment under which any a firm or other 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 willCompany;
(cd) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(de) any fidelity or surety bond or completion bond;
(f) any lease of personal property having a value individually in excess of $25,000;
(g) any agreement of indemnification or guaranty other than standard indemnification agreements between Xcyte terms contained in contracts with resellers and any distributors and licensees of its officers or directorsthe Company's products;
(eh) any agreement, contract or commitment containing any covenant limiting in any respect the freedom right of Xcyte Company to engage in any line of business or to compete with any personperson or granting any exclusive distribution rights;
(fi) any agreement, contract or commitment agreement relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty25,000;
(gj) 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 not in the ordinary course of business or pursuant to which the Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise;
(hk) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit 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 agreementscredit, including amendments guaranties referred to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
clause (kh) 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 Xcytehereof;
(l) any collective bargaining agreementspurchase order or contract involving $25,000 or more;
(m) any purchase order or contract for the purchase of raw materials involving $250,000 or moreconstruction contracts;
(n) any construction contract; ordealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or merchant agreement;
(o) any fidelity agreement pursuant to which the Company has granted or surety bond may be obligated to grant in the future, to any party a source-code license or completion bond. Xcyte has notoption or other right to use or acquire source-code, nor to Xcyte’s Knowledge has including any agreements which provide for source code escrow arrangements;
(p) 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 party person or entity;
(q) any agreement pursuant to an Xcyte Material Contract (as defined below), breached, violated which the Company has advanced or defaulted under, or received notice that it has breached, violated or defaulted under, loaned any amount to any shareholder of the terms Company or conditions any director, officer, employee or consultant other than business travel advances in the ordinary course of business consistent with past practice;
(r) any settlement agreement entered into since January 1, 1996 that provides for continuing obligations of the agreements, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) in such manner as would permit any other party to cancel or terminate any such Xcyte MaterialCompany; or
Appears in 1 contract
Agreements, Contracts and Commitments. Except as filed with (a) As of the SEC or contemplated to be transferred pursuant to date hereof, the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides material 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;Company,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $15,000,
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;25,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside of the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(ixiii) any construction contracts,
(xiv) any distribution, joint marketing or development agreement;,
(ixv) 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 the Company has continuing material obligations granted or may grant in the future, to jointly develop any Intellectual Property that will not be ownedparty, in whole a source-code license or in part, by Xcyte; option or other right to use or acquire source-code,
(iiixvi) any agreement, contract arrangement, joint venture, partnership, license or commitment currently in force to license other relationship with any third party to manufacture or reproduce any Xcyte product, service or technology Governmental Entity whereby the United States Government or any material agreementother Governmental Entity has an ownership interest in or otherwise has the right to exploit in any manner any Company Intellectual Property or any other assets of the Company, 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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;or
(kxvii) any other agreement, contract or commitment (i) which involve payment or receipt by Xcyte under any such agreement, contract or commitment of that involves $100,000 25,000 or more in the aggregate or is not cancelable without penalty within thirty (ii30) that are material to the business operations of Xcyte;days.
(lb) any collective bargaining agreements;
(mExcept 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 Section 2.12(b) any purchase order or contract for of the purchase of raw materials involving $250,000 or more;
(n) any construction contract; or
(o) any fidelity or surety bond or completion bond. Xcyte --------------- Disclosure Letter, the Company has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 or commitment required to be set forth on Section 2.12(a) of the agreements, contracts Company Disclosure Letter or commitments to which Xcyte is a party or by which it is bound --------------- Section 2.11(g) of the type described in clauses (a) through (o) above Company Disclosure Letter (any such agreement, contract --------------- or commitment, an “Xcyte Material a "Contract”) "). Each Contract is in such manner as would permit full force and effect and is not subject to any other default thereunder of which the Company has Knowledge by any party obligated to cancel or terminate any such Xcyte Materialthe Company pursuant thereto.
Appears in 1 contract
Sources: Merger Agreement (Goto Com Inc)
Agreements, Contracts and Commitments. Except as filed with the SEC or contemplated to be transferred pursuant to the IP Sale AgreementThe Company does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining Contract,
(ii) any Contract that contains 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment Contracts with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other 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;Company,
(cv) any agreement Contract or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) any agreement fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $10,000,
(viii) any Contract of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(eix) any agreement, contract or commitment Contract containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment Contract relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;10,000,
(gxi) any agreement, contract or commitment currently in force Contract relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) 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 credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials Contracts involving $250,000 10,000 or more;,
(nxiv) any construction contract; contracts,
(xv) any distribution, joint marketing or development Contracts,
(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 right 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, or
(oxviii) any fidelity other Contract or surety bond commitment that involves $10,000 or completion bond. Xcyte has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract more or is not cancelable without penalty within thirty (as defined below), breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses (a30) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) in such manner as would permit any other party to cancel or terminate any such Xcyte Materialdays.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Digital Impact Inc /De/)
Agreements, Contracts and Commitments. (a) Except as filed with set forth in Section 4.15(a) of the SEC or contemplated Disclosure Schedule (specifying the appropriate clause of this Section 4.15(a) to be transferred pursuant to which such Contract relates), neither the IP Sale Agreement, Xcyte Company nor any of its Subsidiaries nor any of its ERISA Affiliates is not a party to to, or is bound as of the date hereof by:
(ai) (A) any Employee Agreement, Contract or commitment to grant any bonus, deferred compensationchange of control, incentive compensationseverance 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, pensionits Subsidiaries or the relevant ERISA Affiliate, profit-sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay)as applicable;
(bii) any employment, severance, change of control or consulting agreement, contract or commitment with any employee or individual consultant or salesperson or any consulting or sales agreementpolicy, contract or commitment under which any firm or other 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;
(c) any agreement past practice or plan, including any stock option plan, stock appreciation right rights plan or stock purchase plan, stock purchase or any plan or other equity-based planproviding similar equity awards, for which any of the 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(diii) any agreement of indemnification fidelity or guaranty other than indemnification agreements between Xcyte and any of its officers surety bond or directorscompletion bond;
(eiv) any agreementlease of, contract or commitment containing purchase Contract for, personal property having a value in excess of $50,000 individually or $150,000 in the aggregate, or any covenant limiting the freedom of Xcyte to engage in any line of business or compete with any personLease Agreements;
(fv) any agreementContract of indemnification, contract hold harmless agreement or commitment guaranty, other than: Standard Form Agreements, Standard NDAs, Inbound Licenses, Contracts for Open Source Software or Generally Commercially Available Code (other than Generally Commercially Available Code incorporated into any Company Products) and any other Contract listed elsewhere in this Section 4.15(a);
(vi) any Contract relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty50,000 individually or $150,000 in the aggregate;
(gvii) any agreement, contract or commitment currently in force Contract relating to the disposition or acquisition of material assets not in the ordinary course of business or any ownership equity or debt interest in any corporation, partnership, joint venture Person or other business enterprise;
(hviii) 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 in excess of $100,000credit;
(iix) any joint marketing Contract with any Top Customer or development agreementTop Supplier;
(ix) any distribution agreement (identifying any that contain exclusivity provisions); (ii) any dealersales representative, distributororiginal equipment manufacturer, joint marketingvalue added, allianceremarketer, joint venturereseller, shareholderdistribution, cooperationor independent software vendor, development or other agreement currently in force under which Xcyte has continuing material obligations to jointly market any productContract for sale or distribution of the products, technology or service, services of the Company or any agreement of its Subsidiaries;
(xi) any Contract pursuant to which Xcyte the Company or any of its Subsidiaries is bound to or has continuing material obligations committed to jointly develop 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 any reseller or distributor of products) on an exclusive basis or to acquire or license any product or service on an exclusive basis from a third party;
(xiii) any Contract pursuant to which the Company or any of its Subsidiaries has licensed or assigned to any third party any Intellectual Property that will not be owned, in whole or in part, by Xcyte; Rights other than Ordinary Course Outbound Agreements;
(iiixiv) any agreement, contract other Contract that requires future payments of more than $50,000 individually or commitment currently $100,000 in force the aggregate from or to license any third party to manufacture or reproduce any Xcyte product, service or technology the Company or any material agreement, contract of its Subsidiaries and does not expire 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 is not cancelable without penalty upon notice of within ninety (90) days or less (specifically excluding employment agreements and substantially in the form previously provided to Xcyte; or (iv) licenses or other agreements, including amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligationsoffer letters);
(kxv) any other agreementContract pursuant to which the Company or any of its Subsidiaries has undertaken to deliver, contract or commitment (i) pursuant to which involve payment the receipt of revenue is contingent upon the delivery of, products 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 Xcyteservices;
(lxvi) 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 agreements;Contract or similar Contract, including any Contract with any union, works council, trade union, or other labor relations entity.
(mb) The Company has Made Available true, correct and complete copies of all Contracts required to be disclosed pursuant to Section 4.11(e), Section 4.13(c), Section 4.14, and this Section 4.15 existing as of the date hereof (each such Contract, including any purchase order or contract for such Contracts entered into after the purchase of raw materials involving $250,000 or more;date hereof and subject to the descriptions set forth above, a “Material Contract” and collectively, the “Material Contracts”).
(nc) any construction contract; or
(o) any fidelity or surety bond or completion bond. Xcyte has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Each Material Contract (as defined below), breached, violated to which the Company or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Xcyte its Subsidiaries is a party or by which it any of their respective properties or assets (whether tangible or intangible) are subject is bound a valid and binding agreement of the type described Company or such Subsidiary, as applicable, enforceable against the Company or such Subsidiary, as applicable, in clauses (a) through (o) above (any accordance with its terms, and is in full force and effect with respect to the Company or such agreementSubsidiary, contract or commitmentas applicable, an “Xcyte Material Contract”) in such manner as would permit and, to the Knowledge of the Company, any other party thereto subject to cancel (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. Neither the Company nor any of its Subsidiaries has violated or terminate is in violation of, in any such Xcyte Materialmaterial 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. 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 Knowledge of the Company, no event or condition has occurred that would reasonably be expected to result in a violation of, in any material respect, any provision of, or the failure 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. Except as set forth in Section 4.5 of the Disclosure Schedule, no Material Contract requires the obtaining of any consent, approval, notation or waiver of any third party in connection with the 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 are being actively negotiated and that would be required to be listed on Section 4.15(a) of the Disclosure Schedule.
Appears in 1 contract
Sources: Merger Agreement (Informatica Corp)
Agreements, Contracts and Commitments. (a) Except as filed with set forth in Exhibit C, the SEC Company does not have, --------- or contemplated to be transferred pursuant to the IP Sale Agreement, Xcyte is not a party to or bound by:
(ai) 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, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) 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 guaranty, other than indemnification as set forth in agreements between Xcyte and any of its officers or directors;listed in Exhibit C, ---------
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;25,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 25,000 or more;,
(nxiv) any construction contract; contracts,
(xv) any distribution, joint marketing or development agreement, or
(oxvi) any fidelity other agreement, contract or surety bond commitment that involves $25,000 or completion bond. Xcyte more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 of the agreementsagreement, contracts contract, license or commitments commitment to which Xcyte it is a party party, by which it benefits or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract contract, license or commitment, an “Xcyte Material 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, 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 manner as would permit any other party to cancel or terminate any such Xcyte MaterialContracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as filed with set forth on Schedule 2.12(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment agreement with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any a firm or other 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;Company,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $100,000,
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(eix) any agreement, contract or commitment agreement containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment agreement relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;100,000,
(gxi) any agreement, contract or commitment currently in force agreement relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 100,000 or more;,
(nxiv) any construction contract; 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
(oxvii) any fidelity other agreement that involves $100,000 or surety bond more or completion bondis not cancelable without penalty within thirty (30) days of notice. Xcyte has notExcept for such alleged breaches, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as defined beloware 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Schedule 2.12(a) or by which it is bound of the type described in clauses (aSchedule 2.11(g) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) a "CONTRACT"), other than breaches, violations or defaults which have been resolved or cured with no further liability to the Company. Each Contract is in such manner full force and effect and, except as would permit otherwise disclosed in Schedule 2.12(b), is not subject to any other default thereunder of which the Company has knowledge by any party obligated to cancel or terminate any such Xcyte Materialthe Company pursuant thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as filed with set forth in Section 2.11(a) of the SEC or contemplated to be transferred pursuant to Company Disclosure Schedule as of the IP Sale date of this Agreement, Xcyte the Company does not have continuing obligations under, is not a party to or nor is it bound by, any existing:
(ai) collective bargaining agreements,
(ii) agreements or arrangements that contain any severance pay, post-employment liabilities or obligations or “golden parachute” provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(iii) bonus, deferred compensation, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other organization provides services to Xcyteorganization, not terminable by Xcyte on ninety (90) days notice without liability, except to other than the extent general principles of wrongful termination law may limit Xcyte’s ability to terminate employees at will;Intellectual Property Assignments,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement, except as provided herein,
(dvi) any fidelity or surety bond or completion bond,
(vii) lease of personal property having annual lease payments individually in excess of $25,000,
(viii) agreement of indemnification indemnification, warranty or guaranty guaranty, other than indemnification agreements between Xcyte and any End User Agreement or Shrinkwrap Agreement, provided in the ordinary course of its officers the Company’s business or directors;substantially similar in nature to those provided in the Company’s ordinary course of business,
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;50,000, other than the Existing Loan Documents,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company’s business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit (other than sales on credit in excess of $100,000;ordinary course), other than the Existing Loan Documents,
(ixiii) any distribution, joint marketing or product development agreement;, or
(ixiv) 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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) any other agreement, contract or commitment (i) which involve that requires or would reasonably be expected to require payment or receipt by Xcyte under any such agreement, contract or commitment of $100,000 50,000 or more in the aggregate or is not cancelable without penalty within thirty (ii30) 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 $250,000 or more;
(n) any construction contract; or
(o) any fidelity or surety bond or completion bond. Xcyte has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) in such manner as would permit any other party to cancel or terminate any such Xcyte Materialdays.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Sonic Innovations Inc)
Agreements, Contracts and Commitments. (a) Except as filed with set forth in Section 2.14 of the SEC or contemplated to be transferred pursuant to Disclosure Schedule, the IP Sale AgreementCompany does not have continuing obligations under, Xcyte is not a party to or to, nor is it bound by:
(ai) any collective bargaining agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations, other than as contemplated herein or in the Employment and Non-Competition Agreements and the Employment Agreements;
(iii) any bonus, deferred compensation, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay)arrangements;
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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 willorganization;
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated 23 on the basis of any of the Stock Purchasetransactions contemplated by this Agreement, except as provided herein;
(dvi) any fidelity or surety bond or completion bond;
(vii) any lease of personal property having annual lease payments individually in excess of US$10,000;
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any in the ordinary course of its officers or directorsbusiness;
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 US$10,000 in the aggregate (other than agreements, contracts or commitments made in the ordinary course of the Company's business consistent with past practices and not cancelable without penaltyinvolving future payments in excess of US$50,000 in the aggregate);
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprisethe Company's business;
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000credit, including any guarantees;
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 US$10,000 or more;
(nxiv) any construction contractcontracts;
(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 during the Company's current fiscal year is expected to account for, more than one percent (1%) of the Company's revenue or trade payables; or
(oxvii) any fidelity other agreement, contract or surety bond commitment that involves US$10,000 or completion bond. Xcyte more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 (i) any agreement, contract or commitment set forth in Section 2.14 of the agreementsDisclosure Schedule, contracts or commitments (ii) any other agreement, contract or commitment to which Xcyte it is a party or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) a "CONTRACT"). Each Contract is in such manner full force and effect and is not subject to any default thereunder of which the Company or any of the Selling Shareholders is aware by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Closing, all necessary consents, waivers and approvals of parties to any Contract as would permit any other party are required in connection with the transactions contemplated hereby and by each of the Related Agreements, or as are required or advisable in order to cancel or terminate any such Xcyte Materialremain in effect without modification after the consummation of the transactions contemplated hereby and thereby.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as filed with set forth on Schedule 2.12(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) 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 indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;25,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 25,000 or more;more other than purchases in the ordinary course of business,
(nxiv) any construction contract; contracts,
(xv) any distribution, joint marketing or development agreement, or
(oxvi) any fidelity other agreement, contract or surety bond commitment that involves $25,000 or completion bondmore or is not cancelable without penalty within thirty (30) days. Xcyte has notExcept for such alleged breaches, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (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 defined belownoted 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 of the agreementsagreement, contracts contract or commitments commitment to which Xcyte it is a party or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract or commitment, an “Xcyte Material a "Contract”) "). Each agreement, contract or commitment set forth in such manner any of the Company Schedules is in full force and effect and, except as would permit otherwise disclosed in Schedule 2.12(b), is not subject to any other default thereunder of which the Company has knowledge by any party obligated to cancel the Company pursuant thereto. The Company has obtained, or terminate will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any such Xcyte MaterialContract as are required in connection with the Merger.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Network Associates Inc)
Agreements, Contracts and Commitments. Except as filed with set forth on Schedule 2.12(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay)arrangements;
(biv) any employment, severance, change of control employment or consulting agreement, agreement or contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreementagreement or contract, contract or commitment under which any a firm or other organization provides services to Xcyte, not terminable by Xcyte on ninety (90) days notice without liability, except the Company pursuant to which the extent general principles Company is obligated to make payments in excess of wrongful termination law may limit Xcyte’s ability to terminate employees at will$10,000 per year;
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right planoption agreements, stock purchase appreciation rights plan or other equity-based 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(dvi) any fidelity or surety bond or completion bond;
(vii) any lease of personal property having a value individually in excess of $10,000;
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directorsguaranty;
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty10,000 individually or $20,000 in the aggregate;
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprisethe Company's business;
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000clause (viii) hereof;
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 10,000 or more;
(nxiv) any construction 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
(oxvii) any fidelity other agreement, contract or surety bond commitment that involves $20,000 or completion bondmore or is not cancelable without penalty within thirty (30) days. Xcyte Schedule 2.12(a) sets forth a list of the Company's top 15 customers according to revenue for the fiscal year ended December 31, 1999, and each customer with which the Company currently has notan 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, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below2000, 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Schedule 2.12(a) or by which it is bound of the type described in clauses (aSchedule 2.12(b) through (o) above (any such agreement, contract or commitment, an “Xcyte a "Contract") which would result in a Material Contract”) Adverse Effect. Each Contract is in such manner full force and effect and, except as would permit otherwise disclosed in Schedule 2.12(b), is not subject to any other default thereunder of which the Company has knowledge by any party obligated to cancel or terminate any such Xcyte Materialthe Company pursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Carrier Access Corp)
Agreements, Contracts and Commitments. Except as filed with (a) As of the SEC or contemplated to be transferred pursuant to the IP Sale date of this Agreement, Xcyte neither the Company nor any of its Subsidiaries is not a party to to, or is bound by:
(ai) any bonusagreement 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, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay)as a whole;
(bii) any employmentagreement containing a “most favored nation” pricing clause granted by the Company or any of its Subsidiaries;
(iii) any agreement providing for, severanceor containing provisions related to, change indemnification, contribution or guaranties other than agreements entered into in the ordinary course of control business in connection with the sale of goods or 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 any an employee or individual consultant or salesperson other than agreements, contracts or any consulting or sales agreement, contract or commitment under which any firm or other 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 commitments that provide for “at will” employment and do not contain provisions related to bonus, severance or similar termination pay or change of control benefits;
(cv) 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 including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or other equity-based 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(dvi) any agreement of indemnification fidelity or guaranty other than indemnification agreements between Xcyte and any of its officers surety bond or directorscompletion bond;
(evii) any agreementlease of personal property having a value in excess of $10,000 individually or, contract or commitment containing any covenant limiting with respect to the freedom of Xcyte to engage Company and its Subsidiaries as a whole, $25,000 in any line of business or compete with any personthe aggregate;
(fviii) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $50,000 individually or, with respect to the Company and its Subsidiaries as a whole, $100,000 and not cancelable without penaltyin the aggregate;
(gix) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of the Company’s and its Subsidiaries’ business or any ownership interest in any corporation, partnership, joint venture or other business enterpriseconsistent with past practices;
(hx) 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 in excess of $100,000credit;
(ixi) any distribution, joint marketing marketing, joint venture or development agreement;
(ixii) any distribution agreement (identifying any that contain exclusivity provisions); (ii) any dealersales representative, distributororiginal equipment manufacturer, joint marketingvalue added, allianceremarketer, 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 servicereseller, 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 Xcyteindependent software vendor agreement; (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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;or
(kxiii) any other agreement, contract or commitment (i) which involve payment or receipt by Xcyte under any such agreementthat involves $15,000 individually or, contract or commitment of with respect to the Company and its Subsidiaries as a whole, $100,000 or more 25,000 in the aggregate or more and which is not cancelable without penalty upon less than thirty (ii30) that are material to the business operations of Xcyte;days’ notice.
(lb) any collective bargaining agreements;
(m) any purchase order The Company has delivered to Parent or contract for the purchase its representatives a correct and complete copy of raw materials involving $250,000 or more;
(n) any construction contract; or
(o) any fidelity or surety bond or completion bond. Xcyte has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract each written agreement (as defined below)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 or commitment required to be set forth in Section 2.14(a) of the agreements, contracts Disclosure Schedule or commitments to which Xcyte is a party or by which it is bound Section 2.13(h) of the type described in clauses (a) through (o) above Disclosure Schedule (any such agreement, contract or commitment, an a “Xcyte Material 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, there does not exist any agreement, contract or other arrangement entered into by or on behalf of the Company that alters the terms of any Listed Contract. Each Listed Contract is in full force and effect (except as such manner 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 would permit otherwise disclosed in Section 2.14(b) of the Disclosure Schedule the Company has no Knowledge of any other breach thereunder by any party obligated to cancel the Company or terminate any such Xcyte Materialof its Subsidiaries pursuant thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as filed with set forth on Schedule 2.12(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay)arrangements;
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment (other than an oral offer of employment as an employee at will) with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other 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;Company.
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(dvi) any fidelity or surety bond or completion bond;
(vii) any lease of personal property having a value individually in excess of $100,000;
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directorsguaranty;
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty100,000;
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprisethe Company's business;
(hxii) 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 credit, including guaranties referred to in excess of $100,000clause (viii) hereof;
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 100,000 or more;
(nxiv) any construction contract; orcontracts;
(oxv) any fidelity distribution, joint marketing or surety bond development agreement;
(xvi) any agreement pursuant to which the Company has granted or completion bond. Xcyte has notmay grant in the future, nor to Xcyte’s Knowledge has any party, a source-code license or option or other right to use or acquire source-code, or,
(xvii) any other party agreement, contract or commitment that involves future obligations of or payments to an Xcyte Material Contract (the Company of $100,000 or more. 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 defined beloware 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Schedule 2.12(a) or by which it is bound of the type described in clauses (aSchedule 2.11(b) through (o) above (any such agreement, contract or commitment, an “Xcyte Material a "Contract”) "). Each Contract is in such manner full force and effect and, except as would permit otherwise disclosed in Schedule 2.12(b), is not subject to any other material default thereunder of which the Company has knowledge by any party obligated to cancel or terminate any such Xcyte Materialthe Company pursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Corsair Communications Inc)
Agreements, Contracts and Commitments. Except as filed with the SEC or contemplated to be transferred pursuant to the IP Sale Agreement, Xcyte is not a party to or bound by:
(a) Neither Target nor any bonusof its Subsidiaries, deferred compensationnor the Business, incentive compensationis a party to, pensionnor is it bound by, profit-sharing or retirement plansany of the following (together with each Contract listed in SECTION 2.13(J) of the Disclosure Schedule, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);each a "MATERIAL CONTRACT"):
(bi) any employment, severance, change of control independent contractor or consulting agreement, contract or commitment with any employee or an employee, independent contractor, individual consultant or salesperson salesperson, or any consulting or sales agreement, contract, or commitment with a firm or other organization, including any agreement, contract or commitment under which any firm or other organization provides services to Xcyte, not terminable by Xcyte on ninety (90) days notice without liability, except relate to the extent general principles indemnification of wrongful termination law may limit Xcyte’s ability 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 terminate employees at willstandard form agreements which have been attached to the Disclosure Schedule);
(cii) any Contract, agreement or plan, including any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(diii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property having a value in excess of $50,000 individually or $100,000 in the aggregate;
(v) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directorsguaranty;
(evi) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte to engage in any line of business or compete with any person;
(f) any agreement, contract or commitment Contract relating to capital expenditures and involving future obligations payments in excess of $50,000 individually or $100,000 and not cancelable without penaltyin the aggregate, or any agreement that is royalty bearing;
(gvii) any agreement, contract or commitment currently in force Contract relating to the disposition or acquisition of assets not in the ordinary course of business (tangible or intangible) or properties, or any ownership interest in any corporationPerson, partnershipin each case, joint venture or other business enterpriseoutside the Ordinary Course of Business;
(hviii) 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 credit in excess or the continuing or future grant of $100,000any Lien;
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mix) any purchase order or contract Contract for the purchase of raw materials or services involving in excess of $250,000 50,000 individually or more$100,000 in the aggregate;
(nx) any construction contractContract 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 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 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 $100,000 in the aggregate;
(xiv) any 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 Contract regarding transfer pricing among or between any of Target and its Subsidiaries; or
(oxvi) any fidelity other Contract that involves amounts in excess of $50,000 individually or surety bond $100,000 in the aggregate and is not cancelable without penalty within thirty (30) days.
(b) Seller has provided to Buyer true, correct and complete copies of all Material Contracts. With respect to each Material Contract, (i) such Material Contract is valid, legally binding, enforceable, and in full force and effect, and will continue to be in full force and effect following the Closing, (ii) none of Target, its Subsidiaries or completion bond. Xcyte has notFocus Softek is in breach or default under any Material Contract and, nor to Xcyte’s the Knowledge has any of Seller, no other party to an Xcyte any Material Contract (as defined below)is in breach or default thereof, breachedand none of Seller, violated its Subsidiaries or defaulted underFocus Softek, has given to or received from any other Person any written notice or other written communication or, to the Knowledge of Seller, any oral notice or other oral communication regarding any actual, alleged, possible or potential breach of, or received notice that it has breached, violated or defaulted default under, any Material Contract, (iii) to the Knowledge 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 terms date of this Agreement, there are no outstanding renegotiations of, or conditions of 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 agreementsDisclosure Schedule sets forth all necessary consents, contracts waivers and approvals of parties to any Contracts as are required thereunder in connection with the Acquisition Transactions or commitments to which Xcyte is a party the other transactions contemplated by this Agreement or by which it is bound of the type described in clauses (a) through (o) above (any Related Agreement, or for any such agreementContract to remain in full force and effect without limitation, contract modification or commitmentalteration after the Closing so as to preserve all rights of, an “Xcyte Material Contract”) in and benefits to, Target and its Subsidiaries under such manner as would permit any other party to cancel or terminate any such Xcyte MaterialContracts from and after the Closing.
Appears in 1 contract
Sources: Share Purchase Agreement (Nuance Communications, Inc.)
Agreements, Contracts and Commitments. Except as filed with the SEC or contemplated to be transferred pursuant to the IP Sale Agreementset forth on Schedule 7.1.12, Xcyte Transferor does not have, is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $5,000,
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte Transferor to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;5,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 10,000 or more;more other than purchases in the ordinary course of business,
(nxiv) any construction contract; contracts,
(xv) any distribution, joint marketing or development agreement, or
(oxvi) any fidelity other agreement, contract or surety bond commitment that involves $5,000 or completion bond. Xcyte more and is not cancelable without penalty within thirty (30) days.
(xvii) 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, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 of the agreementsagreement, contracts contract or commitments commitment to which Xcyte it is a party or by which it is bound of the type described and which are required to be set forth in clauses (a) through (o) above Schedule 7.1.12 (any such agreement, contract or commitment, an “Xcyte a "CONTRACT") except for breaches, violations or defaults that will not have a Material Contract”) Adverse Effect. Each agreement, contract or commitment set forth in such manner any of Transferor Schedules is in full force and effect and, except as would permit otherwise disclosed in Schedule 3.12(b), is not subject to any other default thereunder of which Transferor has knowledge by any party obligated to cancel or terminate any such Xcyte MaterialTransferor pursuant thereto.
Appears in 1 contract
Sources: Purchase Agreement (Alternative Construction Company, Inc.)
Agreements, Contracts and Commitments. (a) Except as filed with the SEC or contemplated to be transferred pursuant to the IP Sale Agreementset forth in Schedule 2.16, Xcyte Seller is not a party to or bound by:
(ai) any collective bargaining agreements;
(ii) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans Seller Benefit Plans or arrangements (including any agreements that contain severance pay)arrangements;
(biii) any employment, severance, change of control employment or consulting agreement, contract or commitment with any employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to Xcyte, not terminable by Xcyte Seller on ninety (90) days no more than 30 days' notice without liability, except to the extent general principles of wrongful termination law may limit Xcyte’s ability to terminate employees at will;
(civ) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(dv) any agreement of indemnification or guaranty not entered into in the ordinary course of business other than indemnification agreements between Xcyte Seller and any of its officers or directors;
(evi) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte Seller to engage in any line of business or compete with any person;
(fvii) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $100,000 25,000 and not cancelable without penalty;
(gviii) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(hix) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000credit;
(ix) any joint marketing marketing, sales or development agreement;
(ixi) 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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(kxii) any royalty agreement; or
(xiii) any other agreement, contract or commitment (iexcluding real and personal property leases) which involve payment or receipt by Xcyte Seller under any such agreement, contract or commitment of $100,000 10,000 or more in the aggregate or (ii) that are material to the business operations of Xcyte;aggregate.
(lb) any collective bargaining agreements;
Schedule 2.16 contains a complete and correct list of all Seller Contracts (mas defined below) any purchase order or contract for the purchase of raw materials involving $250,000 or more;
(n) any construction contract; or
(o) any fidelity or surety bond or completion bond. Xcyte has notwhich are valid and binding upon Seller and, nor to Xcyte’s Knowledge has Seller's knowledge, any other party to an Xcyte Material 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 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 of the agreements, contracts or commitments to which Xcyte Seller is a party or by which it is bound of the type set forth in Schedule 2.16 or described in clauses (ai) through (oxiii) above (any such agreement, contract or commitment, an “Xcyte Material a "Seller Contract”") in such a manner as would permit any other party to cancel or terminate any such Xcyte MaterialSeller Contract, or would permit any other party to seek damages.
Appears in 1 contract
Sources: Merger Agreement (Vizacom Inc)
Agreements, Contracts and Commitments. Except as filed with set forth in Section 2.16 of the SEC or contemplated to be transferred pursuant to Disclosure Schedule (specifying the IP Sale Agreement, Xcyte appropriate paragraph):
(a) The Company is not a party to or to, nor is it bound by:
(ai) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);
(b) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant to grant any severance or salesperson termination pay (in cash or any consulting or sales agreement, contract or commitment under which any firm or other 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 willotherwise);
(cii) any agreement or plan, including any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(diii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property having a value in excess of $25,000 individually or $50,000 in the aggregate;
(v) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any outside of its officers or directorsthe ordinary course of business;
(e) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte to engage in any line of business or compete with any person;
(fvi) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty25,000 individually or $50,000 in the aggregate;
(gvii) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprisethe Company’s business;
(hviii) 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 in excess of $100,000credit;
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mix) any purchase order or contract for the purchase of raw materials involving in excess of $250,000 25,000 individually or more$50,000 in the aggregate;
(nx) any construction contractcontracts;
(xi) any dealer, distribution, joint marketing, strategic alliance, affiliate or development agreement;
(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 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 hereof, and including those which are contingent upon the release of any new product or new version of an existing product;
(xiv) 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 other than Standard License Agreements; or
(oxv) any fidelity other agreement, contract or surety bond commitment that involves $25,000 individually or completion bond. Xcyte has not$50,000 in the aggregate or more and is not cancelable without penalty within 30 days.
(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 against each of the parties thereto in accordance with its terms, nor and is in full force and effect with respect to Xcyte’s the Company and, to the Knowledge has of the Company, any other party to an Xcyte Material Contract (as defined below), thereto. The Company is in material compliance 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 such Contract, nor to the Knowledge of the agreementsCompany is any party obligated to the Company pursuant to any such Contract subject to any material breach, contracts violation or commitments default thereunder, nor does the Company have Knowledge of any event that with the lapse of time, giving of notice or both would constitute such a material breach, violation or default by the Company or any such other party. True and complete copies of each Contract disclosed in the Disclosure Schedule or required to which Xcyte is be disclosed pursuant to this Section 2.16 (each a party or “Material Contract” and collectively, the “Material Contracts”) have been delivered to Parent.
(c) The Company has fulfilled all material obligations required pursuant to each Contract to have been performed by which it is bound the Company prior to the date hereof, and, without giving effect to the Merger, the Company will fulfill, when due, all of its obligations under the Material Contracts that remain to be performed after the date hereof.
(d) All outstanding indebtedness of the type described in clauses (a) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) in such manner as would permit any other party to cancel or terminate any such Xcyte MaterialCompany may be prepaid without penalty.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as filed with contemplated by this Agreement or set forth on Schedule 2.16, the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or to, nor is it bound by:: 17
(a) any collective bargaining or similar agreement with any labor organization or employee association applicable to employees of the Company;
(b) any employment or 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 are terminable at the will of the Company;
(c) any bonus, deferred compensation, incentive 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-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay)arrangements;
(be) any employment, severance, change of control employment or consulting agreement, contract or commitment agreement with any an employee or individual consultant consultant, contractor or salesperson or any consulting or sales agreement, contract or commitment under which any a firm or other 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 willCompany;
(cf) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(dg) any fidelity or surety bond or completion bond;
(h) any agreement or group of related agreements for the lease of personal property having a value individually in excess of $20,000;
(i) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directorsguaranty;
(ej) any agreement, contract or commitment agreement containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any personperson or entity;
(fk) any agreement, contract or commitment agreement relating to the purchase of materials or capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty20,000;
(gl) any agreement, contract or commitment currently in force agreement relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterpriseenterprise outside the ordinary and usual course of the Company’s business;
(hm) 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 in excess of $100,000to the Company;
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mn) any purchase order or contract for the purchase of raw materials involving $250,000 20,000 or more;
(no) any agreement concerning confidentiality pursuant to which the Company has incurred confidentiality obligations;
(p) any construction contractcontracts;
(q) any dealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or 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
(ou) to the extent not reported on the Company Balance Sheet, any fidelity other agreement that involves $20,000 or surety bond more or completion bondis not cancelable without penalty within thirty (30) days. Xcyte The Company has not, nor to Xcyte’s Knowledge has in any other party to an Xcyte Material Contract (as defined below)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 of agreement, contract or commitment required to be set forth on any Company Schedule relating to the agreements, contracts representations and warranties set forth in Section 2.14 or commitments to which Xcyte is a party or by which it is bound of the type described in clauses (a) through (o) above on Schedule 2.16 (any such agreement, contract or commitment, an a “Xcyte Material Contract”). Each Contract is in full force and effect and is not subject to any default under such Contract by any party obligated to the Company pursuant to the Contract. The Company has no present or future obligations to America Online, Inc. (“AOL”) in such manner as would permit 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 any other party 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 cancel have breached any of the representations 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 terminate any such Xcyte Materialobligation. The Company is in compliance in all material respects with all the terms, conditions and limitations of each version of the “RealSystem G2 SDK Agreement” agreed to by the Company 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) Except as filed with set forth in Section 2.11(a) of the SEC or contemplated to be transferred pursuant to Company Disclosure Schedule, each of the IP Sale AgreementCompany and its subsidiaries does not have continuing obligations under, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining agreements,
(ii) any agreements or arrangements that contain any severance pay, post-employment liabilities or obligations 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, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement, except as provided herein,
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having annual lease payments individually in excess of $25,000,
(viii) any agreement of indemnification indemnification, warranty or guaranty other than indemnification agreements between Xcyte and any in the ordinary course of its officers or directors;business,
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;50,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets not or any interest in any business enterprise outside the ordinary course of the Company's business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;subsidiary's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000;credit,
(ixiii) any distribution, joint marketing or development agreement;, or
(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; (iiixiv) any agreement, contract or commitment currently in force with any customer or vendor which, during the last two fiscal years of the Company, accounted, or is expected 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 account during 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 amendments to such licensesCompany's current fiscal year, for patentsmore than 5% of the Company's revenue or 10% of the Company's trade payables, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;as applicable.
(kxv) any other agreement, contract or commitment (i) which involve payment or receipt by Xcyte under any such agreement, contract or commitment of that involves $100,000 25,000 or more in the aggregate or is not cancelable without penalty within thirty (ii30) that are material to the business operations of Xcyte;days.
(lb) Except for any collective bargaining agreements;
(malleged 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 purchase order or contract for the purchase of raw materials involving $250,000 or more;
(n) any construction contract; or
(o) any fidelity or surety bond or completion bond. Xcyte its subsidiaries has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract or commitmentcommitment set forth in Section 2.10 or Section 2.11(a) of the Company Disclosure Schedule (a "Company Contract"). Each Company Contract is in ---------------- full force and effect and, an “Xcyte Material Contract”except as otherwise disclosed in Section 2.11(b) in such manner as would permit of the Company Disclosure Schedule, is not subject to any other default thereunder of which the Company or any subsidiary is aware by any party obligated to cancel the Company or terminate any such Xcyte Materialsubsidiary pursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Splash Technology Holdings Inc)
Agreements, Contracts and Commitments. Except as filed with contemplated by this Agreement or as set forth on Schedule 3.16, the SEC or contemplated to be transferred pursuant to the IP Sale Agreement, Xcyte Company is not a party to or nor is bound by:
(a) any agreements or arrangements with any current employee or consultant that contains any severance pay or post-employment liabilities or obligations;
(b) any collective bargaining agreements;
(c) any employment or consulting agreement, contract, or commitment with any officer, employee, individual consultant or salesperson, or consulting or sales agreement, contract, or commitment with a firm or other organization;
(d) any bonus, deferred compensation, incentive pension, profit sharing, severance, or retirement plans or agreements, or any other employee benefit plans or arrangements;
(e) any stock option or share purchase plan or arrangement, share appreciation, bonus, deferred compensation, pension, profit-sharing profit sharing, or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay)arrangements;
(b) any employment, severance, change of control or consulting agreement, contract or commitment with any employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other 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;
(cf) any agreement or plan, including including, without limitation, any stock option plan, stock share appreciation right rights plan, stock or share purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(dg) any agreement of indemnification fidelity or guaranty other than indemnification agreements between Xcyte and any of its officers surety bond or directorscompletion bond;
(eh) any agreement, contract contract, or commitment for the lease of personal property having a value individually in excess of C$5,000;
(i) any agreement, contract, or commitment of indemnification or guaranty;
(j) any agreement, contract, or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any personperson or entity;
(fk) any agreement, contract contract, or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penaltyC$5,000 in the aggregate;
(gl) any agreement, contract contract, or commitment currently in force relating to the disposition or acquisition of assets not (other than in the ordinary and usual course of business business) or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(hm) any mortgages, indentures, loans guarantees, loans, or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by the Company or extension of credit in excess of $100,000to the Company;
(in) any agreement, contract, or commitment concerning confidentiality (other than those entered in the ordinary and usual course of business);
(o) 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, including any agreements which provide for source code escrow arrangements;
(p) any sales representative, original equipment manufacturer, value added, re-marketer, or other agreement for distribution of the products, technology, or services of the Company, or the products or services of any other person or entity or any dealer, joint marketing (including any pilot program), 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; (iiiq) any agreement, contract contract, or commitment currently in force pursuant to license which the Company has advanced or loaned any third party amount to manufacture or reproduce any Xcyte product, service or technology shareholder of the Company or any material agreementdirector, contract officer, employee, or commitment currently in force to sell or distribute any Xcyte products or service except agreements with distributors or sales representative consultant of the Company other than business travel advances in the normal ordinary and usual course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Xcytebusiness, consistent with past practice; or (iv) licenses or other agreements, including amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;or
(kr) any other agreement, contract contract, or commitment (i) which involve that involves payment or receipt by Xcyte under any such agreement, contract or commitment the Company of $100,000 C$5,000 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 $250,000 or more;
(n) any construction contract; or
(o) any fidelity or surety bond or completion bondwhich is not cancelable without penalty within 30 days. Xcyte The Company has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), not breached, violated violated, or defaulted under, or received notice that it has breached, violated violated, or defaulted under, any of the terms or conditions of any of agreement, contract or commitment required to be set forth on any schedule relating to the agreements, contracts representations and warranties set forth in Section 3.14 or commitments to which Xcyte is a party or by which it is bound of the type described in clauses (a) through (o) above on Schedule 3.16 (any such agreement, contract or commitment, an a “Xcyte Material Contract”) ). Each of the Contracts is legal, valid and binding on the Company, and, to the knowledge of the Company and the Shareholders, the respective other parties thereto and is in full force and effect, and to the knowledge of the Company and the Shareholders, is enforceable against each other party thereto in accordance with its terms. Neither the Company nor any Shareholder has knowledge of any event that would constitute such manner as a breach, violation or default by such other party with the lapse of time, giving of notice, or both under any Contract. Each Contract is in full force and effect and is not subject to any default, of which the Company or any Shareholder has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing, the Company shall have the right 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 that the Company would permit otherwise be required to pay pursuant to the terms of such Contracts had the transaction contemplated by this Agreement not occurred. No assignment or consent is required from any other party to cancel as a result of this Agreement. Without limiting the foregoing, upon consummation of the transactions contemplated by this Agreement, each Contract shall continue in full force and effect in accordance with its terms without penalty or terminate any such Xcyte Materialother adverse consequence.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as filed with set ------------------------------------- forth on Schedule 2.12, the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(a1) any collective bargaining agreements.
(2) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(3) any bonus, deferred compensation, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay)arrangements;
(b4) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other 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;Company.
(c5) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(d6) any fidelity or surety bond or completion bond;
(7) any agreement, contract or commitment under which it has limited or restricted its right to compete with any person in any respect;
(8) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directorsguaranty;
(e9) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;
(f10) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty10,000;
(g11) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprisethe Company's business;
(h12) 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 credit, including guaranties referred to in excess of $100,000clause (viii) hereof;
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(m13) any purchase order or contract for the purchase of raw materials involving $250,000 10,000 or more;
(n14) any construction contract; ordistribution, joint marketing or development agreement;
(o15) any fidelity assignment, license or surety bond or completion bond. Xcyte has notother agreement with respect to any form of intangible property, nor to Xcyte’s Knowledge has or,
(16) any other party to an Xcyte Material Contract agreement, contract or commitment that involves $10,000 or more or is not cancelable without penalty within thirty (as defined below)30) days. 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Schedule 2.12, Schedule 2.11(a), or by which it is bound of the type described in clauses (aSchedule 2.11(b) through (o) above (any such agreement, contract or commitment, an “Xcyte Material a "Contract”) "). Each Contract is in such manner full force and effect and, except as would permit otherwise disclosed in Schedule 2.12, is not subject to any other default thereunder of which the Company has knowledge by any party obligated to cancel or terminate any such Xcyte Materialthe Company pursuant thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as filed with the SEC or contemplated to be transferred pursuant to the IP Sale Agreementset forth in Schedule 3.16, Xcyte no Buyer Group member is not a party to or bound by:
(ai) any collective bargaining agreements;
(ii) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans Buyer Group Benefit Plans or arrangements (including any agreements that contain severance pay)arrangements;
(biii) any employment, severance, change of control employment or consulting agreement, contract or commitment with any employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to Xcyte, not terminable by Xcyte the Buyer Group member on ninety (90) days no more than 30 days' notice without liability, except to the extent general principles of wrongful termination law may limit Xcyte’s ability to terminate employees at will;
(civ) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(dv) any agreement of indemnification or guaranty not entered into in the ordinary course of business other than indemnification agreements between Xcyte the Buyer Group member and any of its officers or directors;
(evi) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte a Buyer Group member to engage in any line of business or compete with any person;
(fvii) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $100,000 25,000 and not cancelable without penalty;
(gviii) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(hix) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000credit;
(ix) any joint marketing marketing, sales or development agreement;
(ixi) 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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(kxii) any royalty agreement; or
(xiii) any other agreement, contract or commitment (iexcluding real and personal property leases) which involve payment or receipt by Xcyte the Buyer Group member under any such agreement, contract or commitment of $100,000 10,000 or more in the aggregate or aggregate.
(iib) that Schedule 3.16 contains a complete and correct list of all Buyer Contracts (as defined below) which are material valid and binding upon any Buyer Group member and to the business operations of Xcyte;
(l) any collective bargaining agreements;
(m) any purchase order or contract for the purchase of raw materials involving $250,000 or more;
(n) any construction contract; or
(o) any fidelity or surety bond or completion bond. Xcyte has notBuyer's knowledge, nor to Xcyte’s Knowledge has any other party to said Buyer Contract, whether written or oral. All Buyer Contracts to which a related party of Buyer is a party are on terms no less favorable to Buyer than would be obtained from an Xcyte Material unrelated third party. No Buyer Group member, nor to the knowledge of Buyer, any other party to a Buyer Contract (as defined below), 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 of the agreements, contracts or commitments to which Xcyte a Buyer Group member is a party or by which it is bound of the type set forth in Schedule 3.16 or described in clauses (ai) through (oxiii) above (any such agreement, contract or commitment, an “Xcyte Material a "Buyer Contract”") in such a manner as would permit any other party to cancel or terminate any such Xcyte MaterialBuyer Contract, or would permit any other party to seek damages.
Appears in 1 contract
Sources: Merger Agreement (Vizacom Inc)
Agreements, Contracts and Commitments. Except as filed with set forth on Schedule 2.12(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay)arrangements;
(biv) any employment, severance, change of control employment or consulting agreement, agreement or contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreementagreement or contract, contract or commitment under which any a firm or other organization provides services to Xcyte, not terminable by Xcyte on ninety (90) days notice without liability, except the Company pursuant to which the extent general principles Company is obligated to make payments in excess of wrongful termination law may limit Xcyte’s ability to terminate employees at will$20,000 per year;
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(dvi) any fidelity or surety bond or completion bond;
(vii) any lease of personal property having a value individually in excess of $20,000;
(viii) any agreement of indemnification or guaranty (other than indemnification agreements between Xcyte provisions in distribution, reseller and any of its officers or directorsEnd-User Licenses);
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty20,000 individually or $40,000 in the aggregate;
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprisethe Company's business;
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000clause (viii) hereof;
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 25,000 or more;
(nxiv) any construction 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
(oxvii) any fidelity other agreement, contract or surety bond commitment (other than End User Licenses) that involves $40,000 or completion bondmore or is not cancelable without penalty within thirty (30) days. Xcyte Schedule 2.12(a) 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 notan 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, nor to Xcyte’s Knowledge 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 any other party to an Xcyte Material Contract (as defined belowknowledge, 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Schedule 2.12(a) or by which it is bound of the type described in clauses (aSchedule 2.11(b) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) a "CONTRACT"). Each Contract is in such manner full force and effect and, except as would permit otherwise disclosed in Schedule 2.12(b), is not subject to any other material default thereunder of which the Company has knowledge by any party obligated to cancel or terminate any such Xcyte Materialthe Company pursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (New Era of Networks Inc)
Agreements, Contracts and Commitments. (a) Except as filed with set forth in Exhibit C, the SEC Company does not have, or contemplated to be transferred pursuant to the IP Sale Agreement, Xcyte --------- is not a party to or bound by:
(ai) 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, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) 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 guaranty, other than indemnification as set forth in agreements between Xcyte and any of its officers or directors;listed in Exhibit C, ----------
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;25,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 25,000 or more;,
(nxiv) any construction contract; contracts,
(xv) any distribution, joint marketing or development agreement, or
(oxvi) any fidelity other agreement, contract or surety bond commitment that involves $25,000 or completion bond. Xcyte more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 of the agreementsagreement, contracts contract, license or commitments commitment to which Xcyte it is a party party, by which it benefits or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract contract, license or commitment, an “Xcyte Material 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, 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 manner as would permit any other party to cancel or terminate any such Xcyte MaterialContracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as filed with set forth on ------------------------------------- Schedule 2.13(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment agreement with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any agreement with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $100,000,
(viii) any agreement of indemnification or guaranty other than those substantially the same as the agreements of indemnification agreements between Xcyte and any of its officers or directors;guarantees attached hereto as Schedule 2.13,
(eix) any agreement, contract or commitment agreement containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment agreement relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;100,000,
(gxi) any agreement, contract or commitment currently in force agreement relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 100,000 or more;,
(nxiv) any construction contract; 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
(oxvii) any fidelity other agreement that involves $100,000 or surety bond more or completion bondis not cancelable without penalty within thirty (30) days. Xcyte has notExcept for such alleged breaches, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as defined beloware 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Schedule 2.13(a) or by which it is bound of the type described in clauses (a) through (o) above Schedule 2.12 (any such agreement, contract or commitment, an “Xcyte Material a "Contract”) "). Each Contract -------- is in such manner full force and effect and, except as would permit otherwise disclosed in Schedule 2.13(b), is not subject to any other default thereunder of which the Company has knowledge by any party obligated to cancel or terminate any such Xcyte Materialthe Company pursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (International Network Services)
Agreements, Contracts and Commitments. Except as filed with contemplated by this Agreement or as set forth on Schedule 3.15 of the SEC or contemplated to be transferred pursuant to Disclosure Schedule, neither the IP Sale Agreement, Xcyte Company nor the Subsidiary is not a party to or to, nor is either of them bound by:
(a) any agreements or arrangements with any current employee or consultant that contains any severance pay or post-employment liabilities or obligations;
(b) any collective bargaining agreements;
(c) any employment or consulting agreement, contract, or commitment with any officer, employee, individual consultant or salesperson, or consulting or sales agreement, contract, or commitment with a firm or other organization;
(d) any bonus, deferred compensation, incentive pension, profit sharing, severance, or retirement plans or agreements, or any other employee benefit plans or arrangements;
(e) any stock option or stock purchase plan or arrangement, stock appreciation, bonus, deferred compensation, pension, profit-sharing profit sharing, or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay)arrangements;
(b) any employment, severance, change of control or consulting agreement, contract or commitment with any employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other 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;
(cf) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right rights plan, or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(dg) any agreement fidelity or surety bond or completion bond;
(h) any agreement, contract, or commitment for the lease of personal property having a value individually in excess of $5,000;
(i) any agreement, contract, or commitment of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers as set forth on Schedule 3.14, subject to such reasonable variations therein that are not individually materially adverse to the Company or directorsthe Subsidiary, as the case may require;
(ej) any agreement, contract contract, or commitment containing any covenant limiting the freedom of Xcyte the Company or the Subsidiary to engage in any line of business or to compete with any personperson or entity;
(fk) any agreement, contract contract, or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty25,000 in the aggregate;
(gl) any agreement, contract contract, or commitment currently in force relating to the disposition or acquisition of assets not (other than in the ordinary and usual course of business business) or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(hm) any mortgages, indentures, loans guarantees, loans, or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by the Company or the Subsidiary or extension of credit in excess of $100,000to the Company or the Subsidiary;
(in) any agreement, contract, or commitment concerning confidentiality (other than those entered in the ordinary and usual course of business);
(o) any agreement, contract, or commitment pursuant to which the Company or the Subsidiary 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;
(p) any sales representative, original equipment manufacturer, value added, remarketer, or other agreement for distribution of the products, technology, or services of the Company or the Subsidiary, or the products or services of any other person or entity or any dealer, joint marketing (including any pilot program), 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; (iiiq) any agreement, contract contract, or commitment currently in force pursuant to license which the Company or the Subsidiary has advanced or loaned any third party amount to manufacture any shareholder of the Company or reproduce any Xcyte product, service or technology the Subsidiary or any material agreementdirector, contract officer, employee, or commitment currently in force to sell consultant of the Company or distribute any Xcyte products or service except agreements with distributors or sales representative the Subsidiary other than business travel advances in the normal ordinary and usual course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form previously provided to Xcytebusiness, consistent with past practice; or (iv) licenses or other agreements, including amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;or
(kr) any other agreement, contract contract, or commitment (i) which involve that involves payment by the Company or receipt by Xcyte under any such agreement, contract or commitment the Subsidiary of $100,000 25,000 or more in or which is not cancelable without penalty within 30 days. Neither the aggregate or (ii) that are material to Company nor the business operations of Xcyte;
(l) any collective bargaining agreements;
(m) any purchase order or contract for the purchase of raw materials involving $250,000 or more;
(n) any construction contract; or
(o) any fidelity or surety bond or completion bond. Xcyte Subsidiary has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), breached, violated violated, or defaulted under, or received notice that it has breached, violated violated, or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to be set forth on any schedule relating to the representations and warranties set forth in Schedule 3.13 or on Schedule 3.15 of the agreements, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses (a) through (o) above Disclosure Schedule (any such agreement, contract or commitment, an “Xcyte Material a "Contract”) "). Each of the Contracts is legal, valid and binding on the Company or the Subsidiary, as the case may require, and, to the knowledge of the Company and the Shareholders, the respective other parties thereto and is in full force and effect, and to the to the knowledge of the Company and the Shareholders, is enforceable against each party thereto in accordance with its terms. Neither the Company nor any Shareholder has knowledge of any event that would constitute such manner a breach, violation or default with the lapse of time, giving of notice, or both under any Contract. Each Contract is in full force and effect and is not subject to any default, of which the Company or any Shareholder has knowledge, by any party obligated to the Company pursuant thereto. Following the Closing, the Company or the Subsidiary, as the case may require, shall have the right 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 that the Company or the Subsidiary would permit any otherwise be required to pay pursuant to the terms of such Contracts had the transaction contemplated by this Agreement not occurred. Without limiting the foregoing, upon consummation of the transactions contemplated by this Agreement, each Contract shall continue in full force and effect in accordance with its terms without penalty or other party to cancel or terminate any such Xcyte Materialadverse consequence.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as filed with the SEC or contemplated to be transferred pursuant to the IP Sale Agreementset forth in Schedule 3.12, Xcyte each of Parent and Merger Sub do not have, is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other 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;Parent or Merger Sub,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) 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 indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte Parent or Merger Sub to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;25,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;enterprise with a value in excess of $25,000,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 25,000 or more;,
(nxiv) any construction contracts,
(xv) any distribution, joint marketing or development agreement,
(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 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
(oxxi) any fidelity contracts or surety bond agreements with any director, officer or completion bond. Xcyte 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 nota direct or indirect financial interest (for purposes hereof, nor to Xcytethe 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 Knowledge has any other party to an Xcyte Material Contract capital stock).
(b) 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 defined beloware 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party or by which it is bound of the type described in clauses (abe set forth on Schedule 3.12(a) through (oand Schedule 3.11(b) above (any such agreement, contract or commitment, an a “Xcyte Material Contract”) ). Each Contract is in such manner full force and effect and, except as would permit otherwise disclosed in Schedule 3.12(b), is not subject to any other default thereunder by any party obligated to cancel Parent or terminate any such Xcyte MaterialMerger Sub pursuant thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as filed with set forth on Section 2.17(a) of the SEC or contemplated to be transferred pursuant to the IP Sale AgreementDisclosure Schedule, Xcyte Seller is not a party to to, or bound by:
(ai) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);
(b) any employment, severance, change of control employment or consulting agreement, contract or commitment with any 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 under which any with a firm or other 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 willorganization;
(cii) any agreement or plan, including including, without limitation, any stock equity option plan, stock equity appreciation right plan, stock purchase rights plan or other equity-based 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(diii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property;
(v) any lease of real property;
(vi) except as provided in Section 2.17(a)(vii) below, any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directorsguaranty;
(e) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte to engage in any line of business or compete with any person;
(fvii) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty10,000 individually or $50,000 in the aggregate;
(gviii) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterpriseSeller’s Business;
(hix) 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 in excess of $100,000credit;
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mx) any purchase order or contract for the purchase of raw materials involving in excess of $250,000 or more5,000 individually;
(nxi) any construction contractcontracts;
(xii) any partnership, dealer, distribution, joint marketing, joint venture, strategic alliance, affiliate, development agreement or 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 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
(oxv) any fidelity or surety bond or completion bond. Xcyte has notother than customer purchase orders, nor to Xcyte’s Knowledge has any other party agreement, contract or commitment that involves $5,000 individually or $10,000 in the aggregate or more with respect to an Xcyte any Person and is not cancelable without penalty within 30 days. Each of the Contracts listed on or required to be listed on Section 2.17(a) of the Disclosure Schedule (other than the Excluded Contracts) shall be referred to as a “Material Contract” and collectively, as the “Material Contracts.”
(b) 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 (as defined below)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 of the agreements, contracts or commitments such Material Contract; and no party obligated to which Xcyte is a party or by which it is bound of the type described in clauses (a) through (o) above (Seller pursuant to any such agreementMaterial Contract has breached, contract violated or commitment, an “Xcyte defaulted under such Material Contract”) in , or taken any action or failed to act, such manner as that, with the lapse of time, giving of notice or both, such action or failure to act would permit any other party to cancel constitute such a breach, violation or terminate default under such Material Contract by any such Xcyte Materialother party.
(c) Subject to execution and delivery of all required assignment agreements and consents, following the Closing Date, the Buyer will be permitted to exercise all of its rights under the Material Contract without the payment of any additional amounts or consideration other than ongoing obligations, fees, royalties or payments which Seller would otherwise be required to satisfy, perform or pay pursuant to the terms of such Contracts had the transactions contemplated by this Agreement not occurred. Except with respect to this Agreement, Seller is not in 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 penalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as filed with set forth in Section 2.15 of the SEC or contemplated to be transferred pursuant to Disclosure Schedule (specifying the IP Sale Agreementappropriate subparagraph), Xcyte the Company is not a party to or to, nor is it bound by:by any of the following (each, a “Material Contract”):
(a) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);
(bi) any employment, severance, change of control contractor or consulting agreement, agreement or contract or commitment with any an employee or individual consultant consultant, contractor or salesperson salesperson, or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to Xcyte, agreement that is not terminable by Xcyte on ninety (90) days notice the Company at will and without liability, except to the extent general principles of wrongful termination law may limit Xcyte’s ability to terminate employees at willmaterial penalty;
(cii) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(diii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property or equipment having a value in excess of $50,000 individually or $250,000 in the aggregate;
(v) any agreement of indemnification or guaranty, but excluding agreements of indemnification or guaranty other than indemnification 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 between Xcyte and any with its customers that have been entered into in the ordinary course of its officers or directorsbusiness, consistent with past practices;
(e) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte to engage in any line of business or compete with any person;
(fvi) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty150,000 individually or $500,000 in the aggregate;
(gvii) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporationthe Company’s business, partnership, joint venture or other business enterpriseconsistent with past practices;
(hviii) 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 credit;
(ix) any purchase order, contract or other commitment obligating the Company to purchase materials or services at a cost in excess of $100,000150,000 individually or $500,000 in the aggregate;
(ix) any 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 marketing or development venture agreement;
(ixii) 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 the Company receives revenue or other payments in excess of $150,000 individually or $500,000 in the aggregate;
(xiii) any contracts and licenses, including out-bound licenses with respect to jointly develop the Company’s products;
(xiv) any contracts, licenses and agreements to which the Company is a party with respect to any Technology or Intellectual Property that will not be ownedRights, in whole or in partincluding without limitation any in-bound licenses, by Xcyte; out-bound licenses and cross-licenses (iii) any agreementbut excluding standard Shrink Wrap Code licenses, 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) end user licenses or other agreements, including amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, customer agreements entered into in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;the ordinary course of business); or
(kxv) any other agreement, contract or commitment (i) which involve payment that involves $25,000 individually or receipt by Xcyte under any such agreement, contract or commitment of $100,000 or more 250,000 in the aggregate or more and is not cancelable by the Company without penalty within thirty (ii30) that are material to the business operations of Xcyte;days.
(lb) any collective bargaining agreements;
(m) any purchase order or contract for the purchase of raw materials involving $250,000 or more;
(n) any construction contract; or
(o) any fidelity or surety bond or completion bond. Xcyte The Company is in compliance in all material respects with and has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 Contract, nor does the Company 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, and to the Knowledge of the agreementsCompany, contracts or commitments no party obligated to which Xcyte the Company pursuant to any such Material Contract is a party or by which it is bound subject to any default thereunder. As of the type described in clauses (a) through (o) above (any such agreementdate of this Agreement, contract or commitmentto the Knowledge of the Company, an “Xcyte Material Contract”) in such manner as would permit any other no party to cancel a Material Contract has any intention of terminating such Material Contract with the Company or terminate any reducing the volume of business such Xcyte Materialparty conducts with the Company.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as filed with set forth in Exhibit C, the SEC Company does not have, or contemplated to be transferred pursuant to the IP Sale Agreement, Xcyte is --------- not a party to or bound by:
(ai) 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, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) 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 guaranty, other than indemnification as set forth in agreements between Xcyte and any of its officers or directors;listed in Exhibit C, ---------
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;25,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 25,000 or more;,
(nxiv) any construction contract; contracts,
(xv) any distribution, joint marketing or development agreement, or
(oxvi) any fidelity other agreement, contract or surety bond commitment that involves $25,000 or completion bond. Xcyte more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 of the agreementsagreement, contracts contract, license or commitments commitment to which Xcyte it is a party party, by which it benefits or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract contract, license or commitment, an “Xcyte Material 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, 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 manner as would permit any other party to cancel or terminate any such Xcyte MaterialContracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as filed with the SEC or contemplated to be transferred pursuant to the IP Sale Agreementset forth on Schedule 3.12(a), Xcyte eGroups does not have, is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay)arrangements;
(biv) any employment, severance, change of control material employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any material consulting or sales agreement, contract or commitment under which any firm or other 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 willeGroups;
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(dvi) any fidelity or surety bond or completion bond;
(vii) any lease of personal property having a value individually in excess of $50,000;
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directorsguaranty;
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte eGroups to engage in any line of business or to compete with any person;
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty50,000;
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterpriseeGroups' business;
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000clause (viii) hereof;
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 50,000 or more;
(nxiv) any construction contractcontracts;
(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
(oxvii) any fidelity other agreement, contract or surety bond commitment that involves $50,000 or completion bond. Xcyte has notmore or is not cancelable without penalty within thirty (30) days.
(b) Except for such alleged breaches, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as defined beloware 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Schedule 3.12(a), Schedule 3.11(c) or by which it is bound of the type described in clauses (aSchedule 3.11(h) through (o) above (any such agreement, contract or commitment, an “Xcyte Material a "eGroups Contract”) "). Each eGroups Contract is in such manner full force and effect and, except as would permit otherwise disclosed in Schedule 3.12(b), is not subject to any other default thereunder of which eGroups has Knowledge by any party obligated to cancel or terminate any such Xcyte MaterialeGroups pursuant thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as filed with set forth in SECTION 2.15 of the SEC or contemplated to be transferred pursuant to Disclosure Schedule (specifying the IP Sale Agreementappropriate subparagraph), Xcyte the Company is not a party to or to, nor is it bound by:by any of the following (each, a "MATERIAL CONTRACT"):
(a) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);
(b) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson salesperson, or any consulting or sales agreement, contract contract, or commitment under which any with a firm or other organization provides services to Xcyte, not terminable by Xcyte on ninety providing for annual compensation or remuneration with an aggregate value in excess of $50,000;
(90b) days notice without liability, except to the extent general principles of wrongful termination law may limit Xcyte’s ability to terminate employees at willany fidelity or surety bond or completion bond;
(c) any agreement or plan, including any stock option plan, stock appreciation right plan, stock purchase plan or other equity-based plan, any lease of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, personal property providing for annual payments by the occurrence Company of any $75,000 or more and which is not cancelable or terminable without penalty with notice of the Stock Purchase 60 or the value of any of the benefits of which will be calculated on the basis of the Stock Purchasefewer days;
(d) any agreement of indemnification or guaranty (other than indemnification agreements between Xcyte and any product warranties issued in the ordinary course of its officers or directorsbusiness consistent with past practice);
(e) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte to engage in any line of business or compete with any person;
(f) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penaltyannually or $500,000 in the aggregate;
(gf) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise (whether by merger, sale of stock, sale of assets or otherwise) outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprisethe Company's business;
(hg) 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 in excess of $100,000;
providing for either (i) any joint marketing annual payments by the Company of $20,000 or development agreement;
(i) any distribution agreement (identifying any that contain exclusivity provisions); more or (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, aggregate payments 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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) any other agreement, contract or commitment (i) which involve payment or receipt by Xcyte under any such agreement, contract or commitment Company of $100,000 or more in the aggregate or (ii) that are material to the business operations of Xcytemore;
(l) any collective bargaining agreements;
(mh) any purchase order or contract for the purchase of raw materials involving either (i) annual payments by the Company of $250,000 25,000 or more or (ii) aggregate payments by the Company and the Subsidiaries of $100,000 or more;
(ni) any construction contractagreement 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;
(j) any joint venture agreement;
(k) any dealer, distribution, marketing, development 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 providing for annual payments by the Company of $100,000 or more;
(l) any agreement listed in SECTION 2.14(j) of the Disclosure Schedule or any agreement that is royalty bearing; or
(om) any fidelity or surety bond or completion bond. Xcyte has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”commitment that involves payments of $100,000 or more individually or $300,000 or more in the aggregate and is not cancelable without penalty with notice of sixty (60) in such manner as would permit any other party to cancel or terminate any such Xcyte Materialdays.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as filed with set forth on ------------------------------------- Schedule 2.12, the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(a) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(b) any bonus, deferred compensation, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including arrangements, including, without limitation, any agreements that contain severance pay)stock option plan, stock appreciation rights plan or stock purchase plan;
(bc) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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 willorganization;
(cd) any agreement or plan, including any stock option plan, stock appreciation right plan, stock purchase plan or other equity-based plan, under which 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(de) any fidelity or surety bond or completion bond;
(f) any lease of personal property having a value individually in excess of $5,000;
(g) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directorsguaranty;
(eh) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;
(fi) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty5,000;
(gj) any agreement, contract or commitment currently in force relating to the disposition or acquisition of any business enterprise (or the assets not in of any business enterprise) or the disposition of assets of the Company outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprisethe Company's business;
(hk) any mortgages, indentures, loans loans, letters of credit or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit 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 agreementscredit, including amendments guaranties referred to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
clause (kg) 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 Xcytehereof;
(l) any collective bargaining agreements;
(m) any purchase order or contract for the purchase or manufacture by any third party of goods for resale (including, without limitation, raw materials involving materials, components, sub-assemblies and assemblies and finished goods) other than those contracts or purchase orders which both involve $250,000 5,000 or moreless and were entered into in the ordinary course of business;
(m) any construction contracts;
(n) any construction contract; oragreement between the Company and a vendor or dealer of the Company;
(o) any fidelity distribution, joint marketing, development agreement or surety bond other agreement which grants any third party continuing rights (exclusive or completion bond. Xcyte has notnonexclusive) to distribute, nor to Xcyte’s Knowledge has market, develop or otherwise sell any products currently being sold by the Company; or
(p) any other party to an Xcyte Material Contract agreement, contract or commitment that involves $5,000 or more or is not cancelable without penalty within thirty (30) days. 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 defined below)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 Contract. Each Contract is in full force and effect and, except as otherwise disclosed in Schedule 2.12, is not subject to any default thereunder of which the agreements, contracts Company or commitments the Shareholders have knowledge by any party obligated to which Xcyte is a party or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) in such manner as would permit any other party to cancel or terminate any such Xcyte MaterialCompany pursuant thereto.
Appears in 1 contract
Sources: Asset Acquisition Agreement (Global Motorsport Group Inc)
Agreements, Contracts and Commitments. Except As of the date hereof, except as filed with set forth on Schedule 4.16(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(a) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay)collective bargaining agreements;
(b) any employment, severance, change of control 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 any consulting or sales agreement, contract or commitment under which any a firm or other 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 willCompany;
(cd) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(de) any fidelity or surety bond or completion bond;
(f) any lease of personal property having a value individually in excess of $5,000;
(g) any agreement of indemnification or guaranty other than standard indemnification agreements between Xcyte terms contained in contracts with resellers and any distributors and licensees of its officers or directorsthe Company's products;
(eh) any agreement, contract or commitment containing any covenant limiting in any respect the freedom right of Xcyte Company to engage in any line of business or to compete with any personperson or granting any exclusive distribution rights;
(fi) any agreement, contract or commitment agreement relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty5,000;
(gj) 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 not in the ordinary course Ordinary Course of business Business or pursuant to which the Company has any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(hk) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit 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 agreementscredit, including amendments guaranties referred to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
clause (kg) 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 Xcytehereof;
(l) any collective bargaining agreementspurchase order or contract involving $5,000 or more;
(m) any purchase order or contract for the purchase of raw materials involving $250,000 or moreconstruction contracts;
(n) any construction contract; ordealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or merchant agreement;
(o) any fidelity agreement pursuant to which the Company has granted or surety bond may be obligated to grant in the future, to any party a source-code license or completion bond. Xcyte has notoption or other right to use or acquire source-code, nor to Xcyte’s Knowledge has including any agreements which provide for source code escrow arrangements;
(p) 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 party person or entity;
(q) any agreement pursuant to an Xcyte Material Contract 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;
(r) any settlement agreement entered into since January 1, 1997 that provides for continuing obligations of the Company; or
(s) any other agreement that involves $5,000 or more or is not cancelable without penalty within thirty (30) days. Except as defined belowset forth on Schedule 4.16(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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Schedule 4.16(a) or by which it is bound of the type described in clauses (a) through (o) above Schedule 4.14 (any such agreement, contract or commitment, an “Xcyte Material a "Contract”) "). Each Contract is in such manner full force and effect and, except as would permit otherwise disclosed in Schedule 4.16(b), is not subject to any other default thereunder of which the Company has knowledge by any party obligated to cancel or terminate any such Xcyte Materialthe Company pursuant thereto.
Appears in 1 contract
Sources: Stock Purchase Agreement (Medicalogic/Medscape Inc)
Agreements, Contracts and Commitments. (a) Except as filed with set forth on Schedule 2.12(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment Contract with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment Contract under which any firm or other 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;Company,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase transactions contemplated by this Agreement (or upon the occurrence of any subsequent events) or the value of any of the benefits of which will be calculated on the basis of any of the Stock Purchase;transactions contemplated by this Agreement (or upon the occurrence of any subsequent events),
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $50,000,
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(eix) any agreement, contract or commitment Contract containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment Contract relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;20,000,
(gxi) any agreement, contract or commitment currently in force Contract relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company’s business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in clause (viii) hereof in each case in excess of $100,000;10,000,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract Contract for the purchase of raw materials or finished products involving $250,000 5,000 or more;more per order to be incurred by the Company following the date of this Agreement,
(nxiv) any construction contract; Contract,
(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
(oxvii) any fidelity other Contract that involves $20,000 or surety bond more or completion bond. Xcyte is not cancelable without penalty within thirty (30) days.
(b) The Company has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 of the agreementsContract required to be set forth on Schedule 2.12(a)or Schedule 2.11(n)(any such Contract, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Scheduled Contract”). Each Scheduled Contract is in full force and effect (except for those Scheduled Contracts that have terminated or expired by their terms) and, except as otherwise disclosed in such manner as would permit any other Schedule 2.12(b), to the Company’s knowledge, no party obligated to cancel or terminate any such Xcyte Materialthe Company pursuant to a Scheduled Contract is in default thereunder.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Cypress Semiconductor Corp /De/)
Agreements, Contracts and Commitments. (a) Except as filed with set forth on Schedule 2.14(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not ---------------- have any continuing obligations under, Xcyte nor is not it a party to or bound by:
(ai) any collective bargaining agreement, or any contract with or commitment to any trade union, employee bargaining agent or affiliated bargaining agent, and the Company has not conducted any negotiations with respect to enter into any such contracts or commitments,
(ii) any agreement or arrangement that contains any severance pay or post-employment liability or obligation or is otherwise required by statute or case law to provide any of the foregoing,
(iii) any bonus, deferred compensation, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans plan or arrangements (including any agreements that contain severance pay);arrangement,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson salesperson, or any consulting or sales agreement, contract or commitment under which any with a firm or other 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;organization,
(cv) any agreement or plan, including any stock option plan, stock share appreciation right plan, stock purchase rights plan or other equity-based share 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 Stock Purchase Transactions or the value of any of the benefits of which will be calculated on the basis of any of the Stock Purchase;Transactions,
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property,
(viii) any agreement of indemnification or guaranty guaranty, other than intellectual property indemnification agreements between Xcyte and any to customers in the Ordinary Course of its officers or directors;Business,
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;Person,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;25,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets not or any interest in any business enterprise outside the ordinary course of business the Company's business,
(xii) any mortgage, indenture, loan or any ownership interest in any corporationcredit agreement, partnership, joint venture security agreement or other business enterprise;
(h) any mortgages, indentures, loans agreement or credit agreements, security agreements or other agreements or instruments instrument relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials materials, other than purchase orders made in the Ordinary Course of Business and involving not more than $250,000 or more;25,000,
(nxiv) any construction contract; distribution, joint marketing or development agreement, or
(oxv) any fidelity other agreement, contract or surety bond commitment that involves $25,000 or completion bond. Xcyte has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract more or is not cancelable without penalty within 30 days.
(b) Except as defined belownoted in Schedule 2.14(b), the Company has not ---------------- breached, violated or defaulted under, or received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party or by which it is bound of the type described be set forth in clauses (a) through (o) above Schedule -------- 2.14(a), (any such agreement, contract or commitmentcommitment referenced in the preceding ------- clause, an “Xcyte Material a "Contract”) "), nor is the Company aware of any event that would constitute such a breach, violation or default with the lapse of time, the giving of notice or both. Each Contract is in full force and effect and, except as otherwise disclosed in Schedule 2.14(b), is not subject to any default, of ---------------- which the Company is aware, 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, or that are required to be obtained in order for such manner as would permit any other party Contract to cancel or terminate any such Xcyte Materialremain in effect without modification after the Merger.
Appears in 1 contract
Sources: Merger Agreement (Software Com Inc)
Agreements, Contracts and Commitments. Except as filed with set forth on Schedule 2.12(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other 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;Company,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) 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 indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;25,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 25,000 or more;,
(nxiv) any construction contract; contracts,
(xv) any distribution, joint marketing or development agreement,
(xvi) any agreement pursuant to which the Company 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
(oxvii) any fidelity other agreement, contract or surety bond commitment that involves $25,000 or completion bondmore or is not cancelable without penalty within thirty (30) days. Xcyte has notExcept for such alleged breaches, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as defined beloware 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Schedule 2.12(a) or by which it is bound of the type described in clauses (aSchedule 2.11(b) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) a "COMPANY CONTRACT"). Each Company Contract is in such manner full force and effect and, except as would permit otherwise disclosed in Schedule 2.12(b), is not subject to any other default thereunder of which the Company has Knowledge by any party obligated to cancel or terminate any such Xcyte Materialthe Company pursuant thereto.
Appears in 1 contract
Sources: Merger Agreement (Healtheon Corp)
Agreements, Contracts and Commitments. (a) Except as filed with set forth in Exhibit C, the SEC Company does not have, or contemplated to be transferred pursuant to the IP Sale Agreement, Xcyte is --------- not a party to or bound by:
(ai) 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, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) 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 guaranty, other than indemnification as set forth in agreements between Xcyte and any of its officers or directors;listed in Exhibit C, ---------
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;25,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 25,000 or more;,
(nxiv) any construction contract; contracts,
(xv) any distribution, joint marketing or development agreement, or
(oxvi) any fidelity other agreement, contract or surety bond commitment that involves $25,000 or completion bond. Xcyte more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 of the agreementsagreement, contracts contract, license or commitments commitment to which Xcyte it is a party party, by which it benefits or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract contract, license or commitment, an “Xcyte Material a "Contract”) "), nor is the Company or any -------- Principal 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, 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 manner as would permit any other party to cancel or terminate any such Xcyte MaterialContracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as filed with set forth in Section 2.15 of the SEC or contemplated to be transferred pursuant to Disclosure Schedule (specifying the IP Sale Agreementappropriate paragraph), Xcyte as of the date hereof, neither the Company nor any of its Subsidiaries is not a party to to, or is bound by:
(ai) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);
(bA) any employment, severance, change of control contractor (whether an individual or other Person) or consulting (whether an individual or other Person) agreement, contract or commitment with providing for annual compensation in excess of $50,000 or (B) any employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which to grant any firm severance or other organization provides services termination payment (in cash or otherwise) to Xcyteany employee, not terminable by Xcyte on ninety (90) days notice without liability, except to the extent general principles consultant or contractor in excess of wrongful termination law may limit Xcyte’s ability to terminate employees at will$25,000;
(cii) any agreement or plan, including any stock option plan, stock appreciation right plan, stock purchase plan or other equity-based 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(diii) any fidelity or surety bond or completion bond;
(iv) any lease of personal property having a value in excess of $100,000 individually or $250,000 in the aggregate;
(v) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of by the Company or its officers or directorsSubsidiaries that would reasonably be expected to result in material liability;
(e) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte to engage in any line of business or compete with any person;
(fvi) any agreement, contract or commitment relating to capital expenditures and involving which involves future obligations payments in excess of $100,000 and not cancelable without penaltyindividually or $250,000 in the aggregate;
(gvii) any agreement, contract or commitment currently in force Contract relating to the disposition or acquisition of material assets not or any interest in any material business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprisethe Company’s business;
(hviii) 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 in excess of $100,000credit, other than (A) accounts receivables and payables and (B) loans to or from direct or indirect wholly-owned Subsidiaries;
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mix) any purchase order or contract for the purchase of raw materials tangible assets involving in excess of $100,000 individually or $250,000 or morein the aggregate;
(nx) any construction contractmaterial dealer, distribution, joint 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 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
(oxiii) any fidelity other agreement, contract or surety bond commitment that involves payment by the Company of $100,000 individually or completion bond. Xcyte $250,000 in the aggregate or more and is not cancelable without penalty within 90 days.
(b) The Company has notmade 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, nor 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 Xcytewhich 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 has any Knowledge, each other party thereto, enforceable against the Company, and to an Xcyte Material Contract 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 defined below)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 Material Contract, nor to the Company’s Knowledge is any party obligated to the Company pursuant to any Material Contract subject to any 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, or both, would constitute such a material breach, violation or default by the Company or any such other party.
(d) Except as set forth in Section 2.15(d) of the agreementsDisclosure Schedule, contracts or commitments to which Xcyte is a party or by which it is bound all outstanding indebtedness for borrowed money of the type described in clauses (a) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) in such manner as would permit any other party to cancel or terminate any such Xcyte MaterialCompany may be prepaid without penalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except as filed with set forth in Exhibit C, the SEC Company does not have, or contemplated to be transferred pursuant to the IP Sale Agreement, Xcyte --------- is not a party to or bound by:
(ai) 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, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) 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 guaranty, other than indemnification as set forth in agreements between Xcyte and any of its officers or directors;listed in Exhibit C, ---------
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;25,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 25,000 or more;,
(nxiv) any construction contract; contracts,
(xv) any distribution, joint marketing or development agreement, or
(oxvi) any fidelity other agreement, contract or surety bond commitment that involves $25,000 or completion bond. Xcyte more or is not cancelable without penalty within thirty (30) days.
(b) The Company has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 of the agreementsagreement, contracts contract, license or commitments commitment to which Xcyte it is a party party, by which it benefits or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract contract, license or commitment, an “Xcyte Material 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, 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 manner as would permit any other party to cancel or terminate any such Xcyte MaterialContracts will remain in effect without modification after the Closing.
Appears in 1 contract
Agreements, Contracts and Commitments. Except as filed with set forth on Schedule 2.12(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) 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 indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(e) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte to engage in any line of business or compete with any person;
(fix) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;25,000,
(gx) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;disposition
(hxi) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxii) any purchase order or contract for the purchase of raw materials involving $250,000 25,000 or more;more other than purchases in the ordinary course of business,
(nxiii) any construction contract; contracts,
(xiv) any distribution, joint marketing or development agreement, or
(oxv) any fidelity other agreement, contract or surety bond commitment that involves $25,000 or completion bond. Xcyte has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract more or is not cancelable without penalty within thirty (as defined below), breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses 30) days.
(a) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”a "CONTRACT"). Each agreement, contract or commitment set forth in any of the Company Schedules is in full force and effect 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 Effective 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 in such manner as connection with the Merger except those that, if not obtained after best efforts, would permit any other party not individually or in the aggregate be material to cancel the Company or terminate any such Xcyte Materialhave a material adverse effect on the ability of the Company to consummate the Merger.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Network Associates Inc)
Agreements, Contracts and Commitments. Except as filed with set forth on Company Schedule 2.12(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other 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;Company,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) 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 indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(e) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte to engage in any line of business or compete with any person;
(fix) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;25,000,
(gx) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxi) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(ixii) 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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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 executory purchase order or contract for the purchase of raw materials involving $250,000 25,000 or more;,
(nxiii) any construction contract; contracts,
(xiv) 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
(oxvi) any fidelity other agreement, contract or surety bond commitment that requires future payments by the Company of $25,000 or completion bondmore and is not cancelable without penalty within thirty (30) days. Xcyte has notExcept for such alleged breaches, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, as defined beloware 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Company Schedule 2.12(a) or by which it is bound of the type described in clauses (aCompany Schedule 2.11(b) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) a "CONTRACT"). Each Contract is in such manner full force and effect and, except as would permit otherwise disclosed in Company Schedule 2.12(b), is not subject to any other default thereunder of which the Company has knowledge by any party obligated to cancel or terminate any such Xcyte Materialthe Company pursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Netscape Communications Corp)
Agreements, Contracts and Commitments. (a) Except as filed with the SEC or contemplated to be transferred pursuant to the IP Sale Agreementset forth on Schedule 2.12(a), Xcyte Focalink does not have, is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay)arrangements;
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other 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 willFocalink;
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or other equity-based 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(dvi) any fidelity or surety bond or completion bond;
(vii) any material agreement, contract or commitment under which it has limited or restricted its right to compete with any person in any material respect;
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directorsguaranty;
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte Focalink to engage in any line of business or to compete with any person;
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty10,000;
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of Focalink's business or any ownership interest (except for the transactions provided for in any corporation, partnership, joint venture or other business enterprisethis Agreement);
(hxii) 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 credit, including guaranties referred to in excess of $100,000clause (viii) hereof;
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 10,000 or more;
(nxiv) any construction contractdistribution, joint marketing or development agreement;
(xv) any assignment, license or other agreement with respect to any form of intangible property; or,
(oxvi) any fidelity other agreement, contract or surety bond commitment that involves $10,000 or completion bond. Xcyte has notmore or is not cancelable without penalty within thirty (30) days.
(b) Except for such alleged breaches, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined belowviolations 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Schedule 2.11 or by which it is bound of the type described in clauses (aSchedule 2.12(a) through (o) above (any such agreement, contract or commitment, an “Xcyte Material a "Focalink Contract”) "). Each Focalink Contract is in such manner full force and effect and, except as would permit otherwise disclosed in Schedule 2.12(b), to the Knowledge of Focalink is not subject to any other default thereunder by any party obligated to cancel or terminate any such Xcyte MaterialFocalink pursuant thereto.
Appears in 1 contract
Sources: Merger Agreement (Adknowledge Inc)
Agreements, Contracts and Commitments. (a) Except as filed with set forth in Exhibit C, the SEC Company does not have, or contemplated to be transferred pursuant to the IP Sale Agreement, Xcyte --------- is not a party to or bound by:
(ai) 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, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property involving future payments in excess of $25,000,
(viii) any agreement of indemnification or guaranty guaranty, other than indemnification as set forth in agreements between Xcyte and any of its officers or directors;listed in Exhibit C, ---------
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;25,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 25,000 or more;,
(nxiv) any construction contract; contracts,
(xv) any distribution, joint marketing or development agreement, or
(oxvi) any fidelity other agreement, contract or surety bond commitment that involves $25,000 or completion bondmore or is not cancelable without penalty within thirty (30) days. Xcyte The Company has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 of the agreementsmaterial agreement, contracts contract, license or commitments commitment to which Xcyte it is a party party, by which it benefits or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract contract, license or commitment, an “Xcyte Material 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, 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 manner as would permit any other party to cancel or terminate any such Xcyte MaterialContracts will remain in effect without modification after the Closing.
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 (each a "SAND CONTRACT") of Sand at the date of this Agreement. Except as filed with set forth in the SEC or contemplated to be transferred pursuant to the IP Sale AgreementSand Disclosure Letter, Xcyte Sand is not a party to or nor is bound by:
(a) any collective bargaining agreements;
(b) any bonus, deferred compensation, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay)arrangements;
(bc) any employment, severance, change of control employment or consulting agreement, contract or commitment with any employee officer or individual consultant director level employee, or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to Xcyte, not terminable by Xcyte on ninety (90) days notice without liability, except to the extent general principles member of wrongful termination law may limit Xcyte’s ability to terminate employees at willSand's Board of Directors;
(cd) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(de) any agreement of indemnification or guaranty not entered into in the ordinary course of business other than indemnification agreements between Xcyte Sand and any of its officers or directors;
(ef) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte Sand to engage in any line of business or compete with any person;
(fg) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $100,000 50,000 and not cancelable without penalty;
(gh) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(hi) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000credit;
(ij) any 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);
(ik) 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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;or
(kl) any other agreement, contract or commitment (i) which involve involves payment or receipt by Xcyte Sand under any such agreement, contract or commitment of $100,000 50,000 or more in the aggregate or individually and is not cancelable without penalty within thirty (ii30) 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 $250,000 or more;
(n) any construction contract; or
(o) any fidelity or surety bond or completion bonddays. Xcyte has notNeither Sand, nor to Xcyte’s Knowledge has Sand's knowledge any other party to an Xcyte Material Contract (as defined below)a Sand Contract, 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 of the agreements, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) Sand Contracts in such a manner as would permit any other party to cancel or terminate any such Xcyte MaterialSand Contract, or would permit any other party to seek damages.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Insilicon Corp)
Agreements, Contracts and Commitments. (a) Except as filed with set forth in Section 2.11(a) of the SEC or contemplated to be transferred pursuant to Company Disclosure Schedule, each of the IP Sale AgreementCompany and its subsidiaries does not have continuing obligations under, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining agreements,
(ii) any agreements or arrangements that contain any severance pay, post-employment liabilities or obligations 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, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement, except as provided herein,
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having annual lease payments individually in excess of $25,000,
(viii) any agreement of indemnification indemnification, warranty or guaranty other than indemnification agreements between Xcyte and any in the ordinary course of its officers or directors;business,
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;50,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets not or any interest in any business enterprise outside the ordinary course of the Company's business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;subsidiary's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000;credit,
(ixiii) any distribution, 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; (iiixiv) any agreement, contract or commitment currently in force with any customer or vendor which, during the last two fiscal years of the Company, accounted, or is expected 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 account during 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 amendments to such licensesCompany's current fiscal year, for patentsmore than 5% of the Company's revenue or trade payables, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;as applicable or
(kxv) any other agreement, contract or commitment (i) which involve payment or receipt by Xcyte under any such agreement, contract or commitment of that involves $100,000 25,000 or more in the aggregate or is not cancelable without penalty within thirty (ii30) that are material to the business operations of Xcyte;days.
(lb) Except for any collective bargaining agreements;
(malleged 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 purchase order or contract for the purchase of raw materials involving $250,000 or more;
(n) any construction contract; or
(o) any fidelity or surety bond or completion bond. Xcyte its subsidiaries has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (as defined below), 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 of the agreements, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses (a) through (o) above (any such material agreement, contract or commitmentcommitment set forth in Section 2.10 or Section 2.11(a) of the Company Disclosure Schedule (a "Company Contract"). Each Company ---------------- Contract is in full force and effect and, an “Xcyte Material Contract”except as otherwise disclosed in Section 2.11(b) in such manner as would permit of the Company Disclosure Schedule, is not subject to any other default thereunder of which the Company or any subsidiary is aware by any party obligated to cancel the Company or terminate any such Xcyte Materialsubsidiary pursuant thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Splash Technology Holdings Inc)
Agreements, Contracts and Commitments. Except as filed with set forth on ------------------------------------- Schedule 2.12, the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay)arrangements;
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other 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;Company.
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(dvi) any fidelity or surety bond or completion bond;
(vii) any agreement, contract or commitment under which it has limited or restricted its right to compete with any person in any respect;
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directorsguaranty;
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty10,000;
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprisethe Company's business;
(hxii) 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 credit, including guaranties referred to in excess of $100,000clause (viii) hereof;
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 10,000 or more;
(nxiv) any construction contract; ordistribution, joint marketing or development agreement;
(oxv) any fidelity assignment, license or surety bond or completion bond. Xcyte has notother agreement with respect to any form of intangible property, nor to Xcyte’s Knowledge has or,
(xvi) any other party to an Xcyte Material Contract agreement, contract or commitment that involves $10,000 or more or is not cancelable without penalty within thirty (as defined below)30) days. 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 of the agreementsagreement, contracts contract or commitments commitment required to which Xcyte is a party be set forth on Schedule 2.12, Schedule 2.11(a) or by which it is bound of the type described in clauses (aSchedule 2.11(b) through (o) above (any such agreement, contract or commitment, an “Xcyte Material a "Contract”) "). Each Contract is in such manner full force and effect and, except as would permit otherwise disclosed in Schedule 2.12, is not subject to any other default thereunder of which the Company has knowledge by any party obligated to cancel or terminate any such Xcyte Materialthe Company pursuant thereto.
Appears in 1 contract
Sources: Merger Agreement (Synbiotics Corp)
Agreements, Contracts and Commitments. (a) Except as filed with set forth on Schedule 2.12(a), the SEC or contemplated to be transferred pursuant to the IP Sale AgreementCompany does not have, Xcyte is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $10,000,
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;10,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 10,000 or more;more other than purchases in the ordinary course of business,
(nxiv) any construction contract; contracts,
(xv) any distribution, joint marketing or development agreement, or
(oxvi) any fidelity other agreement, contract or surety bond commitment that involves $20,000 or completion bond. Xcyte has notmore or is not cancelable without penalty within thirty (30) days.
(b) Except for such alleged breaches, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract (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 defined belownoted 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 of the agreementsagreement, contracts contract or commitments commitment to which Xcyte it is a party or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract or commitment, an “Xcyte Material a "Contract”) "). Each Contract set forth in such manner any of the Company Schedules is in full force and effect and, except as would permit otherwise disclosed in Schedule 2.12(b), is not subject to any other default thereunder of which the Company has knowledge by any party obligated to cancel the Company pursuant thereto. The Company has obtained, or terminate will obtain prior to the Closing, all necessary consents, waivers and approvals of parties to any such Xcyte MaterialContract as are required in connection with the Acquisition.
Appears in 1 contract
Sources: Stock Acquisition Agreement (Scientific Technologies Inc)
Agreements, Contracts and Commitments. Set forth in Section 2.16 of the HTI Disclosure Letter are a complete and correct list and summary description of all material contracts, agreements, orders, leases, licenses and other commitments (each a "HTI Contract") of HTI at the date of this Agreement. Except as filed with set forth in the SEC or contemplated to be transferred pursuant to the IP Sale AgreementHTI Disclosure Letter, Xcyte HTI is not a party to or nor is bound by:
(a) any collective bargaining agreements;
(b) any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing sharing, or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);
(b) any employment, severance, change of control or consulting agreement, contract or commitment with any employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other 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 willarrangements;
(c) any employment or consulting agreement, contract, or commitment with any officer- or director-level employee, or member of HTI's Board of Directors;
(d) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(de) any agreement of indemnification or guaranty not entered into in the ordinary course of business other than indemnification agreements between Xcyte HTI and any of its officers or directors;
(ef) any agreement, contract contract, or commitment containing any covenant limiting the freedom of Xcyte HTI to engage in any line of business or compete with any person;
(fg) any agreement, contract contract, or commitment relating to capital expenditures and involving future obligations in excess of $100,000 10,000 and not cancelable without penalty;
(gh) any agreement, contract contract, or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture venture, or other business enterprise;
(hi) any mortgages, indentures, loans loans, or credit agreements, security agreements agreements, or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000credit;
(ij) any 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 HTI's software products);
(ik) 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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;or
(kl) any other agreement, contract contract, or commitment (i) which involve involves payment or receipt by Xcyte HTI under any such agreement, contract or commitment of $100,000 or more in the aggregate or individually and is not cancelable without penalty within thirty (ii30) 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 $250,000 or more;
(n) any construction contract; or
(o) any fidelity or surety bond or completion bonddays. Xcyte has notNeither HTI, nor to Xcyte’s Knowledge has HTI's knowledge any other party to an Xcyte Material Contract (as defined below)a HTI Contract, has breached, violated violated, or defaulted under, or received notice that it has breached, violated violated, or defaulted under, any of the material terms or conditions of any of the agreements, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses (a) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) HTI Contracts in such a manner as would permit any other party to cancel or terminate any such Xcyte MaterialHTI Contract, or would permit any other party to seek damages.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Headwaters Inc)
Agreements, Contracts and Commitments. Except as filed with the SEC or contemplated to be transferred pursuant to the IP Sale Agreementset forth on Schedule 3.12(a), Xcyte Seller does not have, is not a party to or nor is it bound by:
(ai) any collective bargaining 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 or arrangements (including any agreements that contain severance pay);arrangements,
(biv) any employment, severance, change of control employment or consulting agreement, contract or commitment with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any with a firm or other 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;organization,
(cv) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(dvi) any fidelity or surety bond or completion bond,
(vii) any lease of personal property having a value individually in excess of $5,000,
(viii) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directors;guaranty,
(eix) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte Seller to engage in any line of business or to compete with any person;,
(fx) any agreement, contract or commitment relating to capital expenditures and involving future obligations payments in excess of $100,000 and not cancelable without penalty;5,000,
(gxi) any agreement, contract or commitment currently in force relating to the disposition or acquisition of material assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;Seller's business,
(hxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit credit, including guaranties referred to in excess of $100,000;clause (viii) hereof,
(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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
(k) 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;
(mxiii) any purchase order or contract for the purchase of raw materials involving $250,000 10,000 or more;more other than purchases in the ordinary course of business,
(nxiv) any construction contract; contracts,
(xv) any distribution, joint marketing or development agreement, or
(oxvi) any fidelity other agreement, contract or surety bond commitment that involves $5,000 or completion bond. Xcyte has not, nor to Xcyte’s Knowledge has any other party to an Xcyte Material Contract more and is not cancelable without penalty within thirty (as defined below), breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses 30) days.
(a) through (o) above (any such agreement, contract or commitment, an “Xcyte a "CONTRACT") except for breaches, violations or defaults that will not have a Material Contract”) in such manner as would permit any other party to cancel or terminate any such Xcyte MaterialAdverse
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Fastcomm Communications Corp)
Agreements, Contracts and Commitments. Except as filed with As of the SEC or contemplated to be transferred pursuant to the IP Sale date of this Agreement, Xcyte the Company is not a party to or nor is it bound by:
(a) any collective bargaining agreements,
(b) any agreements or arrangements that contain any severance pay or similar post-employment liabilities or obligations,
(c) any bonus, deferred compensation, incentive compensation, pension, profit-profit sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay);arrangements,
(bd) any employment, severance, change of control employment or consulting agreement, contract or commitment agreement with any an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any agreement with a firm or other organization provides services to Xcyteorganization, 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;other
(ce) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, rights plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchase;transactions contemplated by this Agreement,
(df) any fidelity or surety bond or completion bond,
(g) any lease of personal property involving annual payments by the Company in any individual case in excess of $100,000, or in the aggregate in excess of $250,000,
(h) any agreement of indemnification or guaranty other than indemnification agreements between Xcyte and any of its officers or directors;pursuant to the Company's standard end-user license agreement, which is attached to the disclosure schedule,
(ei) any agreement, contract or commitment agreement containing any covenant limiting the freedom of Xcyte the Company to engage in any line of business or to compete with any person;,
(fj) any agreement, contract or commitment agreement relating to capital expenditures and involving future obligations payments required to be made by the Company after the date of this Agreement in excess of $100,000 and not cancelable without penalty;250,000,
(gk) any agreement, contract or commitment currently in force agreement relating to the disposition or acquisition by the Company after the date of this Agreement of assets not or any interest in any business enterprise outside the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;the Company's business,
(hl) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by or extension of credit in excess of $100,000;
(i) any joint marketing by 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 agreementsCompany, including amendments guaranties referred to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;
clause (kviii) 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;hereof,
(m) any purchase order or contract for the purchase of raw materials (not including in-license of technology) involving $250,000 5,000 or more;,
(n) any construction contract; orcontracts,
(o) any fidelity distribution, joint marketing or surety bond development agreement which cannot be canceled without penalty upon notice of sixty (60) days or completion bond. Xcyte less,
(p) any agreement pursuant to which the Company has notgranted or is required to grant in the future, nor to Xcyte’s Knowledge has any party a source-code license or option or other right to use or acquire source-code, or
(q) any other party to an Xcyte Material Contract agreement that involves payments by the Company of $100,000 or more or is not cancelable without penalty within thirty (as defined below), breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which Xcyte is a party or by which it is bound of the type described in clauses (a30) through (o) above (any such agreement, contract or commitment, an “Xcyte Material Contract”) in such manner as would permit any other party to cancel or terminate any such Xcyte Materialdays.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Critical Path Inc)
Agreements, Contracts and Commitments. Except as filed with set forth in Section 3.28 of the SEC or contemplated to be transferred pursuant to the IP Sale AgreementParent Disclosure Schedule, Xcyte neither Parent nor any of its subsidiaries is not a party to or is bound by:
(a) any bonus, deferred compensation, severance, incentive compensation, pension, profit-sharing or retirement plans, or any other employee benefit plans or arrangements (including any agreements that contain severance pay)arrangements;
(b) any employment, severance, change of control employment or consulting agreement, contract or commitment with any employee officer or individual consultant or salesperson or any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to Xcytedirector level employee, not terminable by Xcyte Parent or any of its subsidiaries on ninety thirty (9030) days notice without liability, except to the extent general principles of wrongful termination law may limit Xcyte’s Parent's or any of its subsidiaries' ability to terminate employees at will;
(c) any agreement or plan, including including, without limitation, any stock option plan, stock appreciation right plan, plan or stock purchase plan or 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 Stock Purchase 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 Stock Purchasetransactions contemplated by this Agreement;
(d) any agreement of indemnification or guaranty not entered into in the ordinary course of business other than indemnification agreements between Xcyte Parent or any of its subsidiaries and any of its officers or directors;
(e) any agreement, contract or commitment containing any covenant limiting the freedom of Xcyte Parent or any of its subsidiaries to engage in any line of business or compete with any person;
(f) any agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $100,000 50,000 and not cancelable without penalty;
(g) any agreement, contract or commitment currently in force relating to the disposition or acquisition of assets not in the ordinary course of business or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(h) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $100,000credit;
(i) any joint marketing or development agreement;
(ij) 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 amendments to such licenses, for patents, trademarks, trade secrets, domain names or other intellectual property rights, except, in each case, for any agreement with respect to which Xcyte does not have any payment obligations other than immaterial payment obligations;or
(k) any other agreement, contract or commitment (iexcluding real and personal property leases) which involve payment by Parent or receipt by Xcyte any of its subsidiaries under any such agreement, contract or commitment of $100,000 50,000 or more in the aggregate or and is not cancelable without penalty within thirty (ii30) that are material to the business operations days. Neither Parent nor any of Xcyte;
(l) any collective bargaining agreements;
(m) any purchase order or contract for the purchase of raw materials involving $250,000 or more;
(n) any construction contract; or
(o) any fidelity or surety bond or completion bond. Xcyte has notits subsidiaries, nor to Xcyte’s Knowledge has Parent's knowledge any other party to an Xcyte Material a Parent Contract (as defined below), has 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 of the agreements, contracts or commitments to which Xcyte Parent is a party or by which it is bound of the type described in clauses (a) through (ok) above (any such agreement, contract or commitment, an “Xcyte Material a "Parent Contract”") in such manner as would permit any other party to cancel or terminate any such Xcyte MaterialRaven Contract, or would permit any other party to seek damages. Each Parent Contract is valid, binding, enforceable and in full force and effect.
Appears in 1 contract
Sources: Merger Agreement (Vaxgen Inc)