Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party to nor is it bound by: (i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements; (iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization; (v) any agreement or plan (including, any stock option plan, stock appreciation rights plan or stock purchase plan) any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby; (vi) any fidelity or surety bond or completion bond; (vii) any lease of real or personal property having a value individually in excess of $25,000; (viii) any agreement of indemnification, guaranty or suretyship; (ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person; (x) any agreement, contract or commitment relating to capital expenditures or involving future payments in excess of $25,000; (xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties or any interest in any business enterprise outside the ordinary course of the Company’s business; (xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above; (xiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of business; (xiv) any construction contracts; (xv) any distribution, joint marketing, licensing or development agreement; or (xvi) any other agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) days. (b) 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 Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”).
Appears in 1 contract
Sources: Merger Agreement (Valueclick Inc/Ca)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of Neither the Company Schedule sets forth all contracts that are material to the business or operations nor any of the Company or which by their terms seek to limit or define those activities in which the Company its subsidiaries is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party to nor or is it bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an any officer or director, employee or individual consultant or salesperson or consulting or sales agreementmember of the Company’s Board of Directors (excluding standard employee contracts in foreign countries that are governed by local law and which contain only standard, contract or commitment with a firm or other organizationordinary course of business provisions), except for the phantom stock plans described in Section 2.3(a);
(vii) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement, except as set forth in Section 2.3(a);
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually in excess of $25,000;
(viiiiii) any agreement of indemnification, except for standard business indemnification provisions in third-party vendor, customer and service provider contracts, and indemnification agreements with employees and former employees (the standard form of which was previously provided to NBEV) serving as officers and directors of the Company and its foreign subsidiaries, or any guaranty other than any agreement of indemnification entered into in connection with the sale or suretyshiplicense of software products in the ordinary course of business;
(ixiv) any agreement, contract or commitment containing any covenant limiting in any respect the freedom right of the Company or any of its subsidiaries to engage in any line of business or to compete with any personperson or granting any exclusive distribution rights, except for a commitment in connection with a settlement of a lawsuit not to manufacture or sell any mangosteen-based product;
(xv) any agreement, contract or commitment relating to capital expenditures or involving future payments currently in excess of $25,000;
(xi) any agreement, arrangement, right, contract or commitment force relating to the disposition or acquisition of assets, properties by the Company or any interest of its subsidiaries after the date of this Agreement of a material amount of assets not in any business enterprise outside the ordinary course of business or pursuant to which the Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than the Company’s businesssubsidiaries;
(xiivi) any dealer, distributor, joint marketing or development agreement currently in force under which the Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of sixty (60) days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of sixty (60) days or less;
(vii) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to Company and its subsidiaries taken as a whole;
(viii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company Product, service or technology (except for the Tombo and Ba▇▇▇ ▇ontract manufacturing arrangements and other material vendors previously disclosed to NBEV) or any agreement, contract or commitment currently in force to sell or distribute any Company Products, services or technology, except agreements with distributors or sales representative in the normal course of business cancelable based on their terms without penalty upon notice of sixty (60) days or less and substantially in the form previously provided to NBEV;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred except for the indebtedness that was previously disclosed to in subparagraph (vi) aboveNBEV;
(xiiix) any purchase order or contract material settlement agreement entered into within three (3) years prior to the date of this Agreement, except for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of business;
(xiv) any construction contracts;
(xv) any distribution, joint marketing, licensing or development agreementa confidential settlement agreement with two former executives as previously disclosed to NBEV; or
(xvixi) any other agreement, contract or commitment that involves or could result in payments to or by the Company has a value of $25,000 100,000 or more or is not cancelable by in any individual case outside the Company without penalty within thirty (30) daysordinary course of business.
(b) Except for Other than such alleged breaches, violations and defaultsor defaults as would not, and events that would constitute individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, neither the Company nor any of its subsidiaries, nor to the Company’s knowledge any other party to a Company Contract (as defined below), is in breach, violation or default with the lapse of timeunder, giving of notice, or both, all as noted in Section 2.12(b) of and neither the Company Schedule, the Company nor any of its subsidiaries 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 agreementof the agreements, contract contracts or commitment commitments to which it the Company or any of its subsidiaries is a party or by which it or its assets or properties are or may be is bound (any such agreement, contract or commitment, a “Company Contract”). Each Contract is ) in full force and effect and is not subject such a manner as would permit any other party to cancel or terminate any default thereunder of which the such Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtainedContract, or will obtain prior would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”aggregate).
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a2.10(a) of the Company Disclosure Schedule sets forth all contracts that are material to the business or operations lists each of the Company or which by their terms seek following Contracts to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by Seller Parties are bound as of the other parties thereto in connection with date of this Agreement, any Ancillary Agreement, that relate to the operation of the Business or the consummation of the transactions contemplated hereby or thereby Purchased Assets (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party to nor is it bound by:):
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment independent contractor or consulting agreement, contract Contract or commitment with an employee or independent contractor, individual consultant or non-employee salesperson (in all cases in other than Seller Parties’ standard form), or any consulting or sales agreement, contract contract, or commitment with a firm or other organizationorganization that provides for annualized compensation in excess of $100,000;
(v) any agreement or plan (including, any stock option plan, stock appreciation rights plan or stock purchase plan) any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;
(vi) any fidelity or surety bond or completion bond;
(viiii) any lease of real or personal property having a value individually in excess of $25,000property;
(viiiiii) any agreement of indemnification, guaranty indemnification or suretyshipguaranty;
(ixiv) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment relating to capital expenditures or Contract involving future payments in excess of $25,000100,000 or that requires the payment of royalties in excess of $100,000;
(xiv) any agreement, arrangement, right, contract or commitment Contract relating to the disposition or acquisition of assets, assets (tangible or intangible) or properties or any interest in any business enterprise outside the ordinary course of the Company’s businessBusiness not in the Ordinary Course of Business;
(xiivi) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments Contracts relating to the borrowing of money or money, the extension of creditcredit or the continuing or future grant of any Lien;
(vii) any Contract containing covenants or other obligations granting or containing any current or future commitments regarding exclusive rights, including guaranties non-competition, “most favored nations,” restriction on the operation or instruments scope of surety referred its businesses or operations, or similar terms;
(viii) any dealer, distribution, marketing, development or joint venture agreement;
(ix) any sales representative, original equipment manufacturer, manufacturing, value added, marketing, remarketer, reseller, or independent software vendor, distribution or other agreement;
(x) any Contract with any customer of the Business;
(xi) IP Contracts and any agreement, Contract or commitment that obligates the Business to in subparagraph provide future deliverables to any Person including, without limitation, licenses to Transferred IP or the performance of services;
(vixii) above;any Contract that restricts or prohibits Seller Parties from hiring or soliciting for hire any individual to perform employment or consulting services for the Business; or
(xiii) any purchase order or contract for the purchase Assumed Contract that does not have a limitation of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of business;
(xiv) any construction contracts;
(xv) any distribution, joint marketing, licensing or development agreement; or
(xvi) any other agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) daysliability arising from direct damages.
(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, all as noted in Section 2.12(b2.10(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, Disclosure Schedule sets forth all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and Asset Purchase or the other transactions contemplated hereby by this Agreement or any Related Agreement.
(c) There is no breach or default (or right to terminate, accelerate, or modify any rights of the counterparty or obligations of any of the Seller Parties or their Affiliates, or following the Closing, the Buyer Parties) under any Assumed Contract, nor will the execution of this Agreement or the consummation of the transactions contemplated herein give rise to any such breach, default, or right. The Seller Parties and their Affiliates have not received any written notice from any counter party to any Assumed Contract, nor do the Seller Parties or their Affiliates have Knowledge of any facts or circumstances that would reasonably be expected to result in any claim, of any breach or default by the Ancillary AgreementsSeller Parties or their Affiliates under any Assumed Contract, including all such consentsor any right of the applicable counterparty to terminate, approvals accelerate, or waivers necessary to validly transfer and assign all such Contracts to modify any rights of the Surviving Corporation (counterparty or obligations of any of the “Requisite Consents”)Seller Parties or their Affiliates, or, following the Closing, the Buyer Parties.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth disclosed in Section 2.12(a) of the Company ScheduleNexMed SEC Reports, the Company does not have, NexMed is not a party to nor is it or bound by:
(ia) any collective bargaining agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) except as described in Section 3.16 of the NexMed Disclosure Schedule, any bonus, deferred compensation, incentive compensation, pension, profit profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(ivb) except as described in Section 3.16 of the NexMed Disclosure Schedule, any employment or consulting agreement, contract or commitment with an employee any officer or individual consultant or salesperson or consulting or sales agreementemployee, contract or commitment with a firm or other organizationnot terminable by NexMed on thirty (30) days notice without liability, except to the extent general principles of wrongful termination law may limit NexMed’s ability to terminate employees at will;
(vc) except as described in Section 3.16 of the NexMed Disclosure Schedule, any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually in excess of $25,000;
(viiid) any agreement of indemnification, indemnification or guaranty not entered into in the ordinary course of business other than indemnification agreements between NexMed and any of their officers or suretyshipdirectors;
(ixe) any agreement, contract or commitment containing any covenant limiting the freedom of the Company NexMed to engage in any line of business or to compete with any person;
(xf) any agreement, contract or commitment relating to capital expenditures or and involving future payments obligations in excess of $25,00025,000 and not cancelable without penalty;
(xig) any agreement, arrangement, right, contract or commitment currently in force relating to the disposition or acquisition of assets, properties or any interest assets not in any business enterprise outside the ordinary course of the Company’s businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiih) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments credit in excess of surety referred to in subparagraph (vi) above$25,000;
(xiiii) any purchase order joint marketing or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of businessdevelopment agreement;
(xivj) any construction contractsdistribution agreement (identifying any that contain exclusivity provisions);
(xvk) any distribution, joint marketing, licensing or development agreement; orcontract with any Governmental Authority;
(xvil) any other agreement, contract or commitment that involves (excluding real and personal property leases) which involve payment by NexMed under any such agreement, contract or could result in payments to or by the Company commitment of $25,000 50,000 or more or is not cancelable by in the Company without penalty within thirty aggregate. NexMed has not, nor to NexMed’s knowledge has any other party to an NexMed Contract (30) days.
(b) Except for such alleged breachesas defined below), 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 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated violated, or defaulted under, any of the terms or conditions of, or terminated any of any agreementthe agreements, contract contracts or commitment commitments to which it NexMed is a party or by which it or its assets or properties they are or may be bound of the type described in clauses (a) through (l) above (any such agreement, contract or commitment, a “NexMed Contract”)) in such manner as would permit any other party to cancel or terminate any such NexMed Contract, or would permit any other party to seek damages which would reasonably be expected to have a Material Adverse Effect on NexMed. Each As to NexMed, each NexMed Contract is valid, binding, and enforceable and in full force and effect effect, except as enforceability may be limited by bankruptcy and is not subject to any default thereunder other similar laws and general principles of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)equity.
Appears in 1 contract
Sources: Merger Agreement (Nexmed Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) 2.16 of the Disclosure Schedule (specifying the appropriate paragraph):
(a) Neither Company Schedule, the Company does not have, nor any of its Subsidiaries is not a party to nor to, or is it bound by:
(i) any collective bargaining agreements;
agreement for an annual amount greater than $75,000 relating to (ii1) employment, contractor or consulting arrangements or with respect to which severance payments or benefit obligations have arisen or may arise (other than COBRA obligations), (2) contract or commitment with an Employee or individual consultant, contractor, or salesperson, (3) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee to grant any severance or individual consultant termination pay (in cash or salesperson otherwise) to any Employee, or (4) any contractor, consulting or sales agreement, contract contract, or commitment with a firm or other organization;
(vii) any agreement or plan (includingplan, including any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby by this Agreement;
(iii) any collective bargaining, union or therebyworks council agreements;
(iv) any lease of personal property having a value in excess of $25,000 individually or $75,000 in the aggregate;
(v) any agreement that provides for surety, guarantee or indemnification obligations;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually in excess of $25,000;
(viii) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreementContract, contract lease or commitment relating to capital expenditures or and involving future payments in excess of $25,00025,000 individually or $75,000 in the aggregate;
(xivii) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xiiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiiix) any purchase order or contract for the purchase of raw materials involving in excess of $25,000 individually or the provision of services involving $10,000 or more, other than purchases 75,000 in the ordinary course of businessaggregate;
(xivx) any construction contracts;
(xvxi) any dealer, distribution, joint marketing, licensing strategic alliance, affiliate or development agreement;
(xii) any agreement, contract or commitment pursuant to which the Company or any of its Subsidiaries has undertaken to, or pursuant to which the receipt of revenue is contingent upon, the delivery of products or service offerings not in commercial existence and generally available for use by the Company’s end customers as of the date hereof, and specifically not contingent upon the release of any new product or new version of an existing product;
(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; or
(xvixiv) any other agreement, contract Contract, lease or commitment commitment, including, without limitation, or any service, operating or management agreement or arrangement with respect to any of the Leased Real Property, that involves or could result in payments to or by the Company of $25,000 individually or $75,000 in the aggregate or more or and is not cancelable by the Company without penalty within thirty 30 days (30) daysother than customer sales contracts).
(b) Except for such alleged breaches, violations Each Contract to which the Company or any of its Subsidiaries is a party or any of its properties or assets (whether tangible or intangible) is subject is a valid and 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 2.12(b) binding written agreement of the Company Scheduleor any of its Subsidiaries enforceable against each of the parties thereto in accordance with its terms, and is in full force and effect with respect to the Company or any of its Subsidiaries and, to the Knowledge of the Company, any other party thereto 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. With respect to such Contracts, properties or assets, there are no verbal agreements, side-letters or other non-contractual arrangements or communications which might be considered by the other party as committing the Company to any course of action. 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 agreementsuch Contract, contract or commitment nor to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder the Knowledge of which the Company has knowledge by is any party obligated to the Company or any of its Subsidiaries pursuant theretoto any such Contract subject to any material breach, violation or default thereunder, nor does the Company have Knowledge of any event that with the lapse of time, giving of notice or both would constitute such a material breach, violation or default by the Company or any of its Subsidiaries or any such other party. True and complete copies of each Contract disclosed in the Disclosure Schedule or required to be disclosed pursuant to this Section 2.16 (each a “Material Contract” and collectively, the “Material Contracts”) and all amendments or modifications thereto have been delivered or made available to Parent.
(c) The Company and each of its Subsidiaries has obtained, fulfilled all material obligations required pursuant to each Material Contract to have been performed by the Company or will obtain any of its Subsidiaries prior to the Effective Timedate hereof, and, without giving effect to the Merger, the Company will fulfill, when due, all necessary consents, waivers and approvals of parties its obligations under the Material Contracts that remain to be performed after the date hereof.
(d) All outstanding indebtedness of the Company or any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)of its Subsidiaries may be prepaid without penalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a2.14(a) of the Company ScheduleDisclosure Schedule (specifying the appropriate paragraph), the Company does not have, is not a party to nor is it to, or bound by:
(i) any collective bargaining agreements;
(iiA) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonusemployment, deferred compensationcontractor, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales any Employee and (B) any agreement, contract or commitment with a firm to grant any severance or other organizationtermination pay (in cash or otherwise) to any Employee;
(vii) any agreement or plan (includingplan, including any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated or may be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viiii) any fidelity or surety bond or completion bond;
(viiiv) any lease of any real or personal property having a value individually in excess of $25,000property;
(viiiv) any agreement of indemnification, warranty or guaranty or suretyship(excluding such agreements contained in the Standard Form Agreements);
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xvi) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,000by the Company;
(xivii) any agreement, arrangement, right, contract or commitment Contract relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xiiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(ix) any purchase order or Contract for the purchase of materials or services involving payments by the Company in excess of $10,000;
(x) any Contract relating to Intellectual Property Rights, including guaranties excluding Shrink-Wrap and Open Source Licenses;
(xi) any joint marketing or instruments affiliate agreement;
(xii) any dealer, distribution, sales representative, original equipment manufacturer, value added, remarketer, reseller, or independent software vendor, or other agreement for use or distribution of surety referred to in subparagraph (vi) abovethe Company Products;
(xiii) any purchase order joint venture or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of businessjoint development arrangement;
(xiv) any construction contractsnondisclosure, confidentiality or similar agreement, other than nondisclosure agreements on the Company’s standard form which has been made available to Parent or confidentiality provisions contained in the Company’s Standard Form Agreements or in Contracts otherwise disclosed in Section 2.14(a) of the Disclosure Schedule;
(xv) any distribution, joint marketing, licensing Contract pursuant to which the Company is bound to or development agreementhas committed to provide any product or service to any third party on a most favored nation basis or similar terms; or
(xvi) any other agreement, contract or commitment that involves $10,000 individually or could result $50,000 in payments to or by the Company of $25,000 aggregate or more or and is not cancelable by the Company without penalty within thirty (30) 30 days.
(b) Except The Company has made available to Parent true and complete copies of each Contract that has been requested by Parent or its counsel, which shall be deemed to include, but shall not be limited to, all Contracts required to be disclosed pursuant to Sections 2.2, 2.11, 2.12, 2.13 (including, for such alleged breachesthe avoidance of doubt, violations each Contract entered into on a Standard Form Agreement) and defaults2.14(a) (each a “Material Contract” and collectively, the “Material Contracts”) and each of the other documents listed on the Disclosure Schedule.
(c) Each Material Contract to which the Company is a party or any of its properties or assets (whether tangible or intangible) is subject is a valid and binding agreement of the Company, and, to the Knowledge of the Company, each other party thereto, enforceable against the Company, and, to the Knowledge of the Company, each other party thereto, in accordance with its terms, and events that would constitute a breachis in full force and effect with respect to the Company and, violation or default with to the lapse of time, giving of notice, or both, all as noted in Section 2.12(b) Knowledge of the Company, each other party thereto, subject to (i) laws of general application relating to bankruptcy, insolvency fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, and (ii) general principles of equity. The Company Schedule, the Company is in 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 agreementMaterial Contract or any Contract relating to Shrink-Wrap or Open Source Materials, contract or commitment nor to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder the Knowledge of which the Company has knowledge by is any party obligated to the Company pursuant theretoto 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. As of the date hereof, there are no new Contracts being actively negotiated that would be required to be listed in Section 2.14(a).
(d) The Company has obtained, or will obtain fulfilled all material obligations required to have been performed by the Company prior to the Effective Time, all necessary consents, waivers and approvals date hereof pursuant to each Material Contract.
(e) All outstanding Indebtedness for borrowed money of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)Company may be prepaid without penalty.
Appears in 1 contract
Sources: Merger Agreement (Linkedin Corp)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company (including its subsidiaries) or which by their terms seek to limit or define those activities in which the Company and its subsidiaries is (or the Surviving Corporation would be) permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party to nor is it bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(v) any agreement or plan (including, any stock option plan, stock appreciation rights plan or stock purchase plan) any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually involving future payments in excess of $25,000, other than as set forth in Section 2.10(a) of the Company Schedule;
(viii) any agreement of indemnification, warranty, guaranty or suretyshipsuretyship or otherwise obligating the Company or any subsidiary to assume or incur any obligation or liability of a third party, except as described in Section 2.12(a)(vii) of the Company Schedule;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment relating to capital expenditures or involving future payments in excess of $25,00010,000 in any single year or in any specific circumstance;
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties or any interest in any business enterprise enterprise, in each case outside of the ordinary course of the Company’s business;
(xii) any mortgagesmortgage, indenturesindenture, loans loan or credit agreementsagreement, security agreements agreement or other agreements agreement or instruments instrument relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above, other than the lines of credit described in Section 2.31 of the Company Schedule, all of which will be paid in full and terminated as of the Effective Time, unless Parent requests otherwise reasonably prior to such time;
(xiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of business;
(xiv) any construction contracts;
(xv) any distribution, joint marketing, licensing or development agreement; or;
(xvi) any insurance policies, other than as described in Section 2.25 of the Company Schedules;
(xvii) any other agreement, contract or commitment that involves or could result in aggregate payments to or by the Company of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) days.
(b) Except for such alleged breaches, violations The Company 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 2.12(b) of the Company Schedule, the Company has its subsidiaries have not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any breach, default or violation thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract (including the Material Contracts) as are required or prudent to obtain in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation Agreements (the “Requisite Consents”).
Appears in 1 contract
Sources: Merger Agreement (Valueclick Inc/Ca)
Agreements, Contracts and Commitments. Bio-Quant is not party to or bound by:
(a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except except as set forth described in Section 2.12(a) of the Company Bio-Quant Disclosure Schedule, the Company does not have, is not a party to nor is it bound by:
(i) 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;
(ivb) except as described in Section 2.12(a) of the Bio-Quant Disclosure Schedule, any employment or consulting agreement, contract or commitment with an employee any officer or individual consultant or salesperson or consulting or sales agreementemployee, contract or commitment with a firm or other organizationnot terminable by Bio-Quant on thirty (30) days notice without liability, except to the extent general principles of wrongful termination law may limit Bio-Quant’s ability to terminate employees at will;
(vc) except as described in Section 2.12(a) of the Bio-Quant Disclosure Schedule, any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually in excess of $25,000;
(viiid) any agreement of indemnification, indemnification or guaranty not entered into in the ordinary course of business other than indemnification agreements between Bio-Quant and any of their officers or suretyshipdirectors;
(ixe) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Bio-Quant to engage in any line of business or to compete with any person;
(xf) any agreement, contract or commitment relating to capital expenditures or and involving future payments obligations in excess of $25,00025,000 and not cancelable without penalty;
(xig) any agreement, arrangement, right, contract or commitment currently in force relating to the disposition or acquisition of assets, properties or any interest assets not in any business enterprise outside the ordinary course of the Company’s businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiih) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments credit in excess of surety referred to in subparagraph (vi) above$25,000;
(xiiii) any purchase order joint marketing or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of businessdevelopment agreement;
(xivj) any construction contractsdistribution agreement (identifying any that contain exclusivity provisions);
(xvk) any distribution, joint marketing, licensing or development agreementcontract with any Governmental Authority; or
(xvil) any other agreement, contract or commitment that involves (excluding real and personal property leases) which involve payment by or could result in payments to Bio-Quant under any such agreement, contract or by the Company commitment of $25,000 50,000 or more or is not cancelable by in the Company without penalty within thirty aggregate. Bio-Quant has not, nor to Bio-Quant’s knowledge has any other party to a Bio-Quant Contract (30) days.
(b) Except for such alleged breachesas defined below), 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 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated violated, or defaulted under, any of the terms or conditions of, or terminated any of any agreementthe agreements, contract contracts or commitment commitments to which it Bio-Quant is a party or by which it or its assets or properties are or may be is bound of the type described in clauses (a) through (l) above (any such agreement, contract or commitment, a “Bio-Quant Contract”)) in such manner as would permit any other party to cancel or terminate any such Bio-Quant Contract, or would permit any other party to seek damages which would reasonably be expected to have a Material Adverse Effect on Bio-Quant. Each As to Bio-Quant, each Bio-Quant Contract is valid, binding, and enforceable and in full force and effect effect, except as enforceability may be limited by bankruptcy and is not subject to any default thereunder other similar laws and general principles of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)equity.
Appears in 1 contract
Sources: Merger Agreement (Nexmed Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) the Allegro Schedules, neither Allegro nor any of the Company Schedule, the Company does not have, its subsidiaries is not a party to nor or is it bound by:
: (ia) any collective bargaining agreements;
; (ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iiib) any bonus, deferred compensation, incentive compensation, pension, profit profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
; (ivc) any employment or consulting agreement, contract or commitment with an employee any officer or individual consultant director level employee, not terminable by Allegro or salesperson any of its subsidiaries on thirty days notice without liability, except to the extent general principles of wrongful termination law may limit Allegro's or consulting or sales agreement, contract or commitment with a firm or other organization;
any of its subsidiaries' ability to terminate employees at will; (vd) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;
by this Agreement; (vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually in excess of $25,000;
(viiie) any agreement of indemnification, indemnification or guaranty not entered into in the ordinary course of business other than indemnification agreements between Allegro or suretyship;
any of its subsidiaries and any of its officers or directors; (ixf) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Allegro or any of its subsidiaries to engage in any line of business or to compete with any person;
; (xg) any agreement, contract or commitment relating to capital expenditures or and involving future payments obligations in excess of $25,000;50,000 and not cancelable without penalty; 17 18
(xih) any agreement, arrangement, right, contract or commitment currently in force relating to the disposition or acquisition of assets, properties or any interest assets not in any business enterprise outside the ordinary course of the Company’s business;
business or any ownership interest in any corporation, partnership, joint venture or other business enterprise; (xiii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph ; (vi) above;
(xiiij) any purchase order joint marketing or contract for the purchase of raw materials development agreement (excluding agreements with resellers, value added resellers or the provision of services involving $10,000 or more, other than purchases independent software vendors entered into in the ordinary course of business;
business that do not permit such resellers or vendors to modify Allegro's or any of its subsidiaries' software products); (xivk) any construction contracts;
distribution agreement (xv) identifying any distribution, joint marketing, licensing that contain exclusivity provisions); or development agreement; or
(xvil) any other agreement, contract or commitment that (excluding real and personal property leases) which involves payment by Allegro or could result in payments to any of its subsidiaries under any such agreement, contract or by the Company commitment of $25,000 50,000 or more or in the aggregate and is not cancelable by the Company without penalty within thirty (30) days.
. Neither Allegro nor any of its subsidiaries, nor to Allegro's knowledge any other party to an Allegro Contract (b) Except for such alleged breachesas defined below), 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 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, breached violated or defaulted under, any of the material terms or conditions of any agreementof the agreements, contract contracts or commitment commitments to which it Allegro is a party or by which it or its assets or properties are or may be is bound of the type described in clauses (a) through (l) above (any such agreement, contract or commitment, an "Allegro Contract") in such a “manner as would permit any other party to cancel or terminate any such Allegro Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior would permit any other party to the Effective Timeseek damages, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)which would have a Material Adverse Effect on Allegro.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Scheduleon Schedule 2.14(a), the Company does not have---------------- have any continuing obligations under, nor is not it a party to nor is it or bound by:
(i) any collective bargaining agreements;agreement, or any contract with or commitment to any trade union, employee bargaining agent or affiliated bargaining agent (collectively, "labor representatives"), and the Company has --------------------- not conducted any negotiations with respect to enter into any such contracts or commitments,
(ii) any agreements agreement or arrangements arrangement that contain contains any severance pay or post-employment liabilities liability or obligations;obligation or is otherwise required by statute or case law to provide any of the foregoing,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans plan or arrangements;arrangement,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson salesperson, or any consulting or sales agreement, contract or commitment with a firm or other organization;,
(v) any agreement or plan (plan, including, without limitation, any stock option plan, stock share appreciation rights plan or stock 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 transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;by this Agreement, except as provided in Section 1.6,
(vi) any fidelity or surety bond or completion bond;,
(vii) any lease of real or personal property having a value individually in excess of $25,000;property,
(viii) any agreement of indemnificationindemnification or guaranty, guaranty or suretyship;other than intellectual property indemnification to customers in the ordinary course of business,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;,
(x) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,000;5,000,
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties material assets or any interest in any business enterprise outside the ordinary course of the Company’s 's business;,
(xii) any mortgagesmortgage, indenturesindenture, loans loan or credit agreementsagreement, security agreements agreement or other agreements agreement or instruments instrument relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph clause (viviii) above;hereof,
(xiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or morematerials, other than purchases purchase orders made in the ordinary course of business;business and involving not more than $5,000
(xiv) any construction contracts;contract,
(xv) any distribution, joint marketing, licensing marketing or development agreement; , or
(xvi) any other agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 10,000 or more or is not cancelable by the Company 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, all as noted in Section 2.12(b) of the Company ScheduleSchedule 2.14(b), the Company has not ---------------- breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions of any agreement, contract or commitment required to which it is a party or by which it or its assets or properties are or may be bound set forth in Schedule 2.14(a), ---------------- (any such agreement, contract or commitmentcommitment referenced in the preceding clause, a “"Contract”"), nor is the Company or the Sole Shareholder 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 and, except as otherwise disclosed in Schedule 2.14(b), is not subject to any default thereunder ---------------- default, of which the Company has knowledge or Sole Shareholder is aware, by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective TimeClosing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger and Merger, or that are required to be obtained in order for such Contract to remain in effect without modification after the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)Merger.
Appears in 1 contract
Sources: Merger Agreement (Software Com Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) 3.12 of the Company Disclosure Schedule, the Company does not havehave continuing obligations under, is not a party to nor is it bound by:
(ia) any collective bargaining agreements;
(iib) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations, other than as contemplated herein or in the Employment Agreements;
(iiic) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(ivd) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(ve) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement, except as provided herein;
(vif) any fidelity or surety bond or completion bond;
(viig) any lease of real or personal property having a value annual lease payments individually in excess of $25,000;
(viiih) any agreement of indemnification, indemnification or guaranty or suretyshipother than in the ordinary course of business;
(ixi) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xj) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,000;
(xik) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties material assets or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xiil) any purchase order or contract for the purchase of raw materials involving $25,000 or more;
(m) any construction contracts;
(n) any agreement, contract or commitment, including distribution or agency or sales representative agreements, with any party which, during the last two fiscal years of the Company, accounted for, or is expected to account during the Company’s current fiscal year, for more than 5% of the Company’s revenue or trade payables;
(o) any agreement for the granting of any distribution right by the Company to any other party; or
(p) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph clause (viviii) above;
(xiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases hereof in the ordinary course of business;
(xiv) any construction contracts;
(xv) any distribution, joint marketing, licensing or development agreement; or
(xvi) any other agreement, contract or commitment that involves or could result an individual amount in payments to or by the Company excess of $25,000 or more or is not cancelable by the Company 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, all as noted in Section 2.12(b) of the Company Schedule, the 25,000. The Company has not breached, violated or defaulted under, or received notice that it has materially breached, violated or defaulted under, any of the material terms or conditions of (i) any agreement, contract or commitment set forth in Schedule 3.12 of the Company Disclosure Schedule, or (ii) any other material agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be is bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and effect, and, except as otherwise disclosed in Schedule 3.12 of the Company Disclosure Schedule, is not subject to any default thereunder of which the Company has knowledge is aware by any party obligated to the Company pursuant thereto, other than late payments, nonpayment. The Each Contract requiring any consent, waiver or third-party approval as a result of the transaction contemplated by this Agreement is disclosed in Schedule 3.12 of the Company has obtained, or will obtain prior to Disclosure Schedule. Neither the Effective Time, all necessary consents, waivers and approvals execution of parties to any Contract as are required in connection with this Agreement nor consummation of the Merger and the other transactions contemplated hereby and by the Ancillary Agreementswill cause any default or breach under any Contract, including all such consentswithout limitation any key man clause in any Contract, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (acceleration of any payment obligation of the “Requisite Consents”)Company.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) 2.14 of the Company Disclosure Schedule, the Company does not havehave continuing obligations under, is not a party to to, nor is it bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization, other than oral agreements terminable at will which consist solely of agreements by the Company to employ any employee, and corresponding agreements by any employee to conduct work for the Company;
(v) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement, except as provided herein;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value annual lease payments individually in excess of $25,000US$10,000;
(viii) any agreement of indemnification, indemnification or guaranty or suretyshipother than in the ordinary course of business;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,000US$10,000 in the aggregate;
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties material assets or any interest in any business enterprise outside the ordinary course of the Company’s 's business;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) aboveany guarantees;
(xiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $US$10,000 or more, other than purchases in the ordinary course of business;
(xiv) any construction contracts;
(xv) any distribution, joint marketing, licensing 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
(xvixvii) any other agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 US$10,000 or more or is not cancelable by the Company 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, all as noted in Section 2.12(b) of the Company Schedule, the The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions of (i) any agreement, contract or commitment set forth in Section 2.14 of the Disclosure Schedule, or (ii) any other agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be is bound (any such agreement, contract or commitment, a “Contract”"CONTRACT"). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge 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 Effective TimeClosing, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by each of the Ancillary Related Agreements, including all such consents, approvals or waivers necessary as are required or advisable in order to validly transfer remain in effect without modification after the consummation of the transactions contemplated hereby and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)thereby.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth described in ------------------------------------- Disclosure Schedule Section 2.12(a) of the Company Schedule2.14, the Company does not havehave continuing obligations under, is not a party to nor is it bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any material employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(vii) any agreement or plan (includingplan, including any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(vi) any fidelity or surety bond or completion bond;
(viiiii) any lease of real or personal property having a value annual lease payments individually in excess of $25,00050,000;
(viii) any agreement of indemnification, guaranty or suretyship;
(ixiv) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of its current business or to compete with any personPerson;
(xv) any agreement, contract or commitment relating to capital expenditures or and involving future payments individually or in the aggregate in excess of $25,00050,000;
(xivi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties material assets or any interest in any business enterprise outside the ordinary course of the Company’s 's business;
(xiivii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiiviii) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 50,000 or more, other than purchases in the ordinary course of business;
(xivix) any construction contractsmaterial distribution, joint marketing or development agreement;
(xvx) any distributionagreement, joint marketingcontract, licensing commitment or development agreementloan to or with any of the Company's shareholders, officers, directors, Affiliates, Associates, employees or any Person who is an Affiliate or Associate of any such shareholder, officer or director; or
(xvixi) any other agreement, contract or commitment (1) that involves or could result in payments to or by the Company of $25,000 50,000 or more (payable or is receivable) or (2) which cannot cancelable be cancelled by the Company without penalty within thirty upon not less than 30 days' written notice or (303) dayswhich is material to the business, financial condition, assets, properties, Liabilities, results of operations or prospects of the Company.
(b) Accurate and complete copies (together with all ancillary documents thereto, including any amendments, consents for alterations and documents regarding variations) of the items set forth in Disclosure Schedule Section 2.14 in response to Section 2.14(a) (collectively, the "COMMITMENTS") have been delivered to the Purchaser. Except as set forth in Disclosure Schedule Section 2.14, with respect to each Commitment: (i) each is a valid and binding obligation of the parties thereto (except as the enforceability thereof may be limited by principles of public policy and subject to the laws of general application relating to bankruptcy, insolvency and the relief of debtors and to rules of law governing specific performance, injunctive relief or other equitable remedies) and in full force and effect, (ii) the Company is not in material default in the performance of any of its obligations thereunder or in the payment of any principal of or interest on any indebtedness for such alleged breachesborrowed money, violations and defaults(iii) to the knowledge of either the Selling Shareholder or the Company, and events that would constitute a breachno material default has occurred which (whether with or without notice, violation or default with the lapse of time, giving of notice, or both, all as noted in Section 2.12(bor the happening or the occurrence of any other event) would constitute an event of default thereunder or a breach thereunder, (iv) upon consummation of the Company Scheduletransactions contemplated by this Agreement and the Related Agreements, the Company has not breachedwithout providing notice to or obtaining approval, violated consent or defaulted underwaiver from any Person, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is each will continue in full force and effect without material penalty or other material adverse consequence and is not subject to any default thereunder of which the Company shall be unaffected by such transactions, and (v) no Commitment has knowledge been materially amended or otherwise affected 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 as are required in connection with the Merger and the other transactions contemplated hereby and writing signed by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)parties thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) 2.14 of the Company Disclosure Schedule, the Company does not have, is not a party to to, nor is it bound by:by any of the following (each, a "MATERIAL CONTRACT"):
(ia) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson salesperson, or consulting or sales agreement, contract contract, or commitment with a firm or other organization;
(vb) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements Contemplated Transactions or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyContemplated Transactions;
(vic) any fidelity or surety bond or completion bond;
(viid) any lease of real personal or personal movable property having a value individually in excess of $25,00050,000 individually or $100,000 in the aggregate;
(viiie) any agreement of indemnification, guaranty indemnification or suretyshipguaranty;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xf) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,00050,000 individually or $100,000 in the aggregate;
(xig) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties or any interest in any business enterprise outside the ordinary course of the Company’s 's business;
(xiih) any mortgages, hypothecations, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiii) any purchase order or contract for the purchase of raw materials involving in excess of $50,000 individually or the provision of services involving $10,000 or more, other than purchases 100,000 in the ordinary course of businessaggregate;
(xivj) any construction contractsagreement containing covenants or other obligations granting any person exclusive rights, "most favored nations" or similar terms or binding the Company to a covenant not to compete or restricting any operation of its business or containing any similar terms;
(xvk) any dealer, distribution, joint marketing, licensing marketing or development agreement;
(l) 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;
(m) any IP Agreements; or
(xvin) any other agreement, contract or commitment that (i) involves or could result in payments to or by the 5 largest customers of the Company of during the current fiscal year to date, or (ii) involves $25,000 50,000 individually or more or $100,000 in the aggregate and is not cancelable by the Company 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, all as noted set forth in Section 2.12(b) 2.14 of the Company Disclosure Schedule, the Company has consummation of the Contemplated Transactions will not breachedviolate nor result in the breach, violated modification, cancellation, termination or defaulted under, or received notice that it has breached, violated or defaulted under, suspension of any of the terms agreements referenced in this Section 2.14, entitle the other party -41- or conditions parties to such agreements to terminate such agreements or require the payment of any agreement, contract additional amounts or commitment consideration other than amounts which Company would otherwise be required to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)pay.
Appears in 1 contract
Agreements, Contracts and Commitments. Section 4.20 of the Disclosure Schedule lists all of the agreements to which the Company or any Subsidiary is a party (each, a “Contract”) which involve:
(a) Section 2.12(a) of financial obligations by or to the Company Schedule sets forth all contracts or any Subsidiary for a total amount in excess of Fifty Thousand Dollars ($50,000) per year (per Contract);
(b) any agreement that are material to has been entered into for the business or operations primary purpose of establishing obligations on the part of the Company or which by their terms seek any Subsidiary to limit indemnify any officer, director, employee or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the third party (other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as than indemnification obligations set forth in Section 2.12(a) customer contracts entered into in the ordinary course of the Company Schedulebusiness), the Company does not have, is not or any power of attorney or guaranty (granted to a party to nor is it bound by:
(i) any collective bargaining agreementsthird party);
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(v) any agreement or plan (including, any stock option plan, stock appreciation rights plan or stock purchase plan) any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;
(vi) any fidelity or surety bond or completion bond;
(viic) any lease of real or personal property having a value individually in excess of Twenty-Five Thousand Dollars ($25,000);
(viiid) any agreement (or group of indemnificationrelated agreements) under which it has created, guaranty incurred, assumed, or suretyshipguaranteed any indebtedness for borrowed money or any capitalized lease obligation in or under which a security interest has been imposed on any of its assets, tangible or intangible;
(ixe) any agreementbonus, contract profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance or commitment containing any covenant limiting other plan or arrangement for the freedom benefit of the Company to engage in any line of business its current or to compete with any personformer directors, officers or employees;
(xf) any agreementagreement under which it has advanced or loaned any amount to any of its current or former directors, contract officers or commitment relating to capital expenditures or involving future payments in excess of $25,000employees;
(xig) any agreement, arrangement, right, contract agreement under which the consequences of a default or commitment relating termination could have a Material Adverse Effect; and
(h) any agreement pursuant to which the disposition or acquisition of assets, properties Company or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xii) any mortgagesSubsidiary is obligated to provide maintenance, indentures, loans support or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiii) any purchase order or contract training for the purchase of raw materials or the provision of services involving $10,000 or moreits products, other than purchases in the ordinary course of business;
. With respect to each such Contract or IP Contract: (xivA) the agreement is legal, valid, binding and in full force and effect, subject to the Enforceability Limitations; (B) neither the Company, any construction contracts;
(xv) any distributionSubsidiary, joint marketing, licensing or development agreement; or
(xvi) nor any other agreementparty is in material breach or default and, contract to the Company’s Knowledge, no event has occurred, which with notice or commitment that involves or could result in payments to or by the Company lapse of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) days.
(b) Except for such alleged breaches, violations and defaults, and events that time would constitute a breach, violation material breach or default with the lapse of time, giving of noticedefault, or bothpermit termination, all as noted in Section 2.12(bmodification, or acceleration, under the agreement; (C) of the Company Schedule, the Company has not breachedand, violated or defaulted underto the Company’s Knowledge, or received notice that it each other party to such agreement has breached, violated or defaulted under, not repudiated any provision of the terms agreement; (D) there are no disputes, oral agreements or conditions of any agreementforbearance programs in effect; and (E) to its Knowledge, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and the Company is not subject aware of facts that would reasonably prevent the service or products called for thereunder to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required be supplied in connection accordance with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)its terms.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(aor excepted from (by virtue of the specific exclusions contained in Sections 2.13(f) or 2.13(g) of the Company Disclosure ---------------- ------- Schedule) Sections 2.13(f) and 2.13(g) of the Disclosure Schedule, or as set ---------------- ------- forth in Section 2.14(a) of the Disclosure Schedule, neither the Company does not have, nor any --------------- Subsidiary is not a party to to, nor is it bound by:
(i) any collective bargaining agreementsconfidentiality, secrecy or non-disclosure contract or any contract limiting the freedom of the Company or any Subsidiary to engage in any line of business, compete with any other Person, or otherwise conduct its business;
(ii) any agreements employment, consulting, termination, severance or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting change of control agreement, contract or commitment with an employee or individual consultant or salesperson salesperson, or consulting or sales agreement, contract contract, or commitment with a firm or other organization;
(viii) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viiv) any fidelity or surety bond or completion bond;
(viiv) any lease of real or personal property having a value individually in excess of $25,000US$10,000 individually or US$25,000 in the aggregate;
(viii) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xvi) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,000US$10,000 individually or US$25,000 in the aggregate;
(xivii) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s 's or any Subsidiary's business;
(xiiviii) any mortgages, hypothecations, indentures, guarantees, promissory notes, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or money, extension of credit, including guaranties credit or instruments any leasing transaction of surety referred the type required to be capitalized in subparagraph (vi) aboveaccordance with GAAP;
(xiiiix) any purchase order or contract for the purchase of raw materials supplies, equipment, or the provision of services involving $in excess of US$10,000 individually or more, other than purchases US$25,000 in the ordinary course of businessaggregate;
(xivx) any construction contracts;
(xvxi) any dealer, distribution, joint marketing, licensing marketing or development agreement;
(xii) any sales representative, agency, 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; or
(xvixiii) any other agreement, contract or commitment that involves US$10,000 individually or could result US$25,000 in payments to or by the Company of $25,000 aggregate or more or and is not cancelable by the Company 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, all as noted in Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”).
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Scheduleon Schedule 4.16, the Company does not have, and is not a party to nor or is it not bound byby any of the following Contracts:
(i) any collective bargaining agreementsagreement;
(ii) any agreements employment or arrangements that contain consulting Contract commitment with any severance pay Employee, contractor, consultant, advisor or post-employment liabilities or obligationsmember of the Company’s board of directors;
(iii) any bonusbonus or any other incentive compensation, deferred compensation, severance, salary continuation, pension, profit sharing or retirement plansplan, or any other employee benefit plans plan or arrangementsarrangement, that is not listed on Schedule 4.24(a);
(iv) any employment or consulting agreement, contract or commitment commission and/or sales agreement with an employee or Employee, individual consultant or salesperson salesperson, or consulting or sales agreement, contract or commitment with under which a firm or other organizationorganization provides commission or sales-based services to the Company, that is not listed on Schedule 4.25(b) or 4.26(c);
(v) any agreement or plan (includingplan, including any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of the Closing or any of the other transactions contemplated by this Agreement or and the Ancillary Related Agreements or the value of any of the benefits of which will be calculated on the basis of the Closing or any of the other transactions contemplated hereby by this Agreement or therebythe Related Agreements;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually in excess of $25,00025,000 per annum;
(viii) any agreement Contract of indemnification, indemnification or guaranty or suretyshipto any third party other than pursuant to the Standard Support Agreement;
(ix) any agreement, contract or commitment Contract containing any covenant limiting the freedom of the Company to engage in any line of business or in any geographic territory or to compete with any personPerson, or which grants to any Person any exclusivity to any geographic territory, any customer, or any Customer Product or Service;
(x) any agreement, contract or commitment Contract relating to capital expenditures or and involving future payments in excess of $25,00025,000 per annum in any individual case or $50,000 per annum in the aggregate;
(xi) any agreement, arrangement, right, contract or commitment Contract not already fully performed relating to the acquisition or disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s businessbusiness or any agreement relating to the acquisition of assets or any interest in any business enterprise;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments Contract relating to the borrowing of money or the extension of credit, including guaranties credit or instruments of surety referred to in subparagraph (vi) aboveevidencing any Debt;
(xiii) other than the Standard Support Agreements, any purchase order or contract Contract (including for the purchase services) involving in excess of raw materials $25,000 per annum in any individual case or the provision of services involving $10,000 50,000 per annum or more, other than purchases more in the ordinary course of businessaggregate;
(xiv) any construction contractsdealer, distribution, joint marketing (including any pilot program), development, content provider, destination site or merchant Contract involving amounts in excess of $25,000 per annum in any individual case or $50,000 per annum or more in the aggregate;
(xv) any distributionContract pursuant to which the Company has granted or may be obligated to grant in the future, joint marketingto any Person, licensing a source-code license or development agreement; oroption or other right to use or acquire source code, including any Contract that provide for source code escrow arrangements;
(xvi) any sales representative, original equipment manufacturer, value added re-seller, re-marketer or other agreementagreement for distribution of the Company’s Products or Services, contract or the products or services of any other Person;
(xvii) any agreement pursuant to which the Company has advanced or loaned any amount to any stockholder of the Company or any Employee or consultant thereof, other than business travel advances in the ordinary course of business consistent with past practice;
(xviii) any joint venture, partnership, strategic alliance or other agreement involving the sharing of profits, losses, costs or liabilities with any Person or any development, data-sharing, marketing, resale, distribution or similar arrangement relating to any product or service;
(xix) any commitment to any Person to provide or deliver any product or service, or to support or maintain any product or service, on, in conjunction with or interoperating with any third party product, service or platform (a “Third Party Platform”), which Third Party Platform is not currently fully interoperable with such product or service or with respect to which the Company must undertake any efforts to be so fully interoperable, and each commitment to develop, improve or customize any product or service;
(xx) each proposed agreement as to which any bid, offer, written proposal, term sheet or similar document has been submitted by or received by the Company; or
(xxi) other than the Standard Support Agreements, any other Contract that involves or could result in payments to or by the Company of $25,000 per annum or more or is not cancelable by without penalty upon sixty (60) days notice or less. Each Contract required to be set forth on Schedule 4.16 is in full force and effect and is valid, binding and enforceable in accordance with its terms and the Company without penalty within thirty (30) days.
(b) Except for such alleged breachesis not in default thereunder, violations and defaults, and events that would constitute a breach, violation or default with nor to the lapse of time, giving of notice, or both, all as noted in Section 2.12(b) knowledge of the Company Schedule, Seller Parties is any party obligated to the Company has pursuant to any such Contract in default thereunder. The Company is in compliance with and have not breached, violated or defaulted under, or received notice that it has they have breached, violated or defaulted under, any of the terms or conditions of any agreementContract, contract nor does the any Seller Party have knowledge of any event or commitment occurrence that would reasonably be expected to which it is constitute such a party breach, violation or by which it default (with or its assets without the lapse of time, giving of notice or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”both).
Appears in 1 contract
Sources: Stock Purchase Agreement (Descartes Systems Group Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) 2.16 of the Company Schedule, Disclosure Schedule (specifying the appropriate paragraph):
(a) neither the Company does not have, nor any of its Subsidiaries is not a party to to, nor is it bound by:
(i) any collective bargaining agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonusemployment, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment contractor or consulting agreement, contract or commitment with an employee or individual consultant consultant, contractor, or salesperson salesperson, any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any employee, or any contractor, consulting or sales agreement, contract contract, or commitment with a firm or other organization;
(vii) any agreement or plan (includingplan, including any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viiii) any fidelity or surety bond or completion bond;
(viiiv) any lease of real or personal property having a value individually in excess of $25,00010,000 individually or $50,000 in the aggregate;
(viiiv) any agreement of indemnification, guaranty indemnification or suretyshipguaranty;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xvi) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,00010,000 individually or $50,000 in the aggregate;
(xivii) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xiiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiiix) any purchase order or contract for the purchase of raw materials or the provision involving in excess of services involving $10,000 individually or more, other than purchases $50,000 in the ordinary course of businessaggregate;
(xivx) any construction contracts;
(xvxi) any dealer, distribution, joint marketing, licensing strategic alliance, affiliate or development agreement; or;
(xvixii) any agreement, contract or commitment to alter the Company’s interest in any Subsidiary, corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(xiii) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for use or distribution of the products, technology or services of the Company or any of its Subsidiaries;
(xiv) any other agreement, contract or commitment that involves $10,000 individually or could result $50,000 in payments to or by the Company of $25,000 aggregate or more or and is not cancelable by the Company without penalty within thirty (30) 30 days.
(b) Except for such alleged breaches, violations Each Contract to which the Company or any of its Subsidiaries is a party or any of their respective properties or assets (whether tangible or intangible) is subject is a valid 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 2.12(b) binding agreement of the Company Scheduleor its Subsidiaries, as the case may be, enforceable against each of the parties thereto in accordance with its terms, and is in full force and effect with respect to the Company has or the applicable Subsidiary and, to the Knowledge of the Company and the Shareholders, any other party thereto. The Company and each of its Subsidiaries are in compliance with and have not breached, violated or defaulted under, or received notice that it has they have breached, violated or defaulted under, any of the terms or conditions of any agreementsuch Contract, contract or commitment nor to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder the Knowledge of which the Company has knowledge by or the Shareholders is any party obligated to the Company or any of its Subsidiaries pursuant theretoto any such Contract subject to any breach, violation or default thereunder, nor does the Company or any Shareholder have Knowledge of any event that with the lapse of time, giving of notice or both would constitute such a breach, violation or default by the Company, its Subsidiaries or any such other party. True and complete copies of each Contract disclosed in the Disclosure Schedule or required to be disclosed pursuant to this Section 2.16 (each a “Material Contract” and collectively, the “Material Contracts”) have been delivered to Purchaser.
(c) The Company has obtained, or will obtain and each of its Subsidiaries have fulfilled all material obligations required pursuant to each Contract to have been performed by the Company prior to the Effective Timedate hereof, and to the Knowledge of the Company and the Shareholders, without giving effect to the Acquisition, the Company will fulfill, when due, all necessary consents, waivers and approvals of parties its obligations under the Material Contracts that remain to any Contract as are required in connection with be performed after the Merger and date hereof.
(d) All outstanding indebtedness of the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals Company or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)its Subsidiaries may be prepaid without penalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Scheduleon Schedule 2.14(a), the Company does not have, is not a party to to, nor is it bound by:
(i) any collective bargaining agreementsagreement under which the consequences of a default or termination would reasonably be expected to have a Material Adverse Effect on the Company;
(ii) any agreements or arrangements that contain agreement between the Company and any severance pay or post-employment liabilities or obligationsshareholder of the Company (other than in their capacity as such);
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangementsagreement containing a "most favored nation" pricing clause granted by the Company;
(iv) any employment agreement granting an exclusive license to any Company Technology or consulting agreementcreating exclusive distribution rights;
(v) any agreement of indemnification or guaranty other than agreements entered into in the ordinary course of business in connection with the sale of goods or services;
(vi) any employment, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with an individual employee, consultant or salesperson, or with a firm or other organization;
(vvii) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viviii) any fidelity or surety bond or completion bond;
(viiix) any lease of real or personal property having a value individually in excess of $25,000;
(viii) any agreement of indemnification, guaranty 10,000 individually or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting $25,000 in the freedom of the Company to engage in any line of business or to compete with any personaggregate;
(x) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,00010,000 individually or $25,000 in the aggregate;
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s business's business consistent with past practices;
(xii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiii) any purchase order or contract for the purchase of raw materials or the provision involving in excess of services involving $10,000 individually or more, other than purchases $25,000 in the ordinary course of businessaggregate;
(xiv) any construction contractsdealer, distribution, joint marketing, joint venture or development agreement, strategic alliance, or any other agreement (noncompete or otherwise) that reasonably could be expected to have the effect of prohibiting or impairing any business practice of the Company, any acquisition of property by the Company, the conduct of business by the Company, or the manufacture, sale, licensing or distribution by the Company of any product, service, Technology or Intellectual Property Right in any manner, or otherwise limiting the freedom of the Company to engage in any line of business or compete with any Person;
(xv) any distributionsales representative, joint marketingoriginal equipment manufacturer, licensing value added, remarketer, reseller, or development independent software vendor agreement, or other agreement for use or distribution of the Company's products, technology or services; or
(xvi) any other agreement, contract or commitment that involves $10,000 individually or could result in payments to or by the Company of $25,000 in the aggregate or more or and is not cancelable by the Company without penalty within thirty (30) days.
(b) Except for such alleged breachesThe Company has delivered to Parent a correct and complete copy of each written agreement (as amended through the date of this Agreement) listed in Schedule 2.14(a). The Company has not breached, violations and defaultsviolated or defaulted under, and events nor received notice that it has breached, violated or defaulted under, nor to the Knowledge of the Company has any event occurred that would constitute a breach, violation or default with the lapse of time, the giving of notice, or both, all as noted in Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, under any of the terms or conditions of any agreement, contract or commitment required to which it is a party be set forth in Schedule 2.14(a) or by which it or its assets or properties are or may be bound Schedule 2.13 (any such agreement, contract or commitment, a “"Listed Contract”"). Each Listed Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge 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 as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Sirenza Microdevices Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Disclosure Schedule, the no Group Company does not have, is not a party to nor is it or otherwise bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(vii) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements Transaction Documents or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby the Transaction Documents;
(viiii) any fidelity or surety bond or completion bond;
(viiiv) any lease of real or personal property having a value individually in excess of $25,000to any Group Company;
(viii) any agreement of indemnification, guaranty or suretyship;
(ixv) any agreement, contract or commitment containing any covenant limiting the freedom of the any Group Company to engage in any line of business or to compete with any person;,
(xvi) any agreement, contract or commitment relating to material capital expenditures or and involving future payments in excess of $25,000payments;
(xivii) any agreement, arrangement, right, contract or commitment relating to the leasing, licensing, disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s any Group Company business;
(xiiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiiix) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in outside the ordinary course of businessbusiness consistent with past practice, but in any event not for more than forty thousand U.S. dollars ($40,000);
(xivx) any construction contracts;
(xvxi) any dealer, agency, distribution, joint marketing, licensing development or development indemnification agreement; or;
(xvixii) any sales representative, original equipment manufacturer, value added, remarketer, reseller or other agreement for distribution of any Group Company's products or services, or the products or services of any person;
(xiii) any agreement, contract or commitment that involves or that could result in reasonably be expected to involve (i) aggregate payments to by any Group Company, or the receipt by the Company any Group Company, of forty thousand U.S. dollars ($25,000 40,000) or more individually or in the aggregate and that is not cancelable by the Company without penalty within thirty (30) calendar days, (ii) minimum purchase commitments by any Group Company, or (iii) ongoing service or support obligations and that are not cancelable without penalty or refund within third (30) calendar days; or
(xiv) any agreement under which such Group Company has made any representations or warranties whose time limits have not yet expired in connection with the acquisition, disposal or any other transfer of shares or other assets or under which such Group Company could be held liable in connection with such representations or warranties under guarantees, suretyships or similar engagements or in any other way, and there are no claims of third parties based on such representations or warranties, or such guarantees, suretyships or similar engagements, which may be set off against claims of any of the Group Companies.
(b) Except for such alleged breaches, violations Each Group Company is in material compliance in all respects with 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 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract contract, covenant, instrument, lease, license or commitment to which it any Group Company is a party or by which it or its assets or properties are or may be is bound (any such agreement, contract or commitmenteach, a “Contract”"COMPANY CONTRACT"), nor is any Group Company or any Selling Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Company Contract is in full force and effect and and, to the knowledge of the Selling Shareholders, is not subject to any material default thereunder of which the Company has knowledge by any party obligated to the any Group Company pursuant thereto. The Each Group Company has obtained, obtained or will obtain prior to the Effective Time, Closing all necessary consents, waivers and approvals of the parties to any Contract listed in EXHIBIT F as are required for the Company Contracts with such parties to remain in connection with effect without modification after the Merger and Acquisition.
(c) No Group Company, or any of its directors, officers, employees, representatives, or agents has for the other transactions contemplated hereby and by purpose of securing any contract or advantage to any Group Company given or offered any bribe, kick-back, or any corrupt, unlawful or immoral payment or contribution.
(d) Except as set forth in the Ancillary AgreementsCompany Disclosure Schedule, including all such consents, approvals or waivers necessary no Company Contract has been entered into otherwise than pursuant to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)normal "arm's length" commercial terms.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the The Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementscontract, license or agreement to which the Company is a party (A) with respect to Company Intellectual Property licensed or transferred to any third party or (B) pursuant to which a third party has licensed or transferred any Intellectual Property to the Company, with a value or cost in excess of $25,000;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(viii) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viiv) any fidelity or surety bond or completion bond;
(viiv) any lease of real or personal property having a value individually with fixed annual rental payments in excess of $25,000;
(viiivi) any contract, license or agreement between the Company and any third party wherein or whereby the Company has agreed to, or assumed, any obligation or duty to warrant, indemnify, hold harmless or otherwise assume or incur any obligation or liability with respect to the infringement or misappropriation by the Company or such third party of indemnification, guaranty or suretyshipthe Intellectual Property of any third party;
(ixvii) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xviii) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,000;
(xiix) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s 's business;
(xiix) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit other than trade credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiixi) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 25,000 or more, other than purchases in the ordinary course of business;
(xivxii) any construction contracts;
(xvxiii) any distribution, joint marketing, licensing marketing or development agreement; or
(xvixiv) any other agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) days.
(b) Except for such alleged breaches, violations The Company is in compliance with 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 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any material agreement, contract contract, license or commitment to which it is a party or by which it or its assets or properties are or may be is bound (any such material agreement, contract contract, license or commitment, a “Contract”"CONTRACT"), and the Company is not aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each To the knowledge of the Company, each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated effect, and, to the Company pursuant theretoknowledge of the Company, all other parties to each Contract are in compliance with, and have not breached any term of, such Contract. The Company has obtained, obtained or will obtain prior to the Effective TimeClosing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger and or to remain in effect without modification after the other transactions contemplated hereby and by Closing. Following the Ancillary AgreementsEffective Time, including the Company will be permitted to exercise all such consents, approvals or waivers necessary to validly transfer and assign all such of the Company's rights under the Contracts to the Surviving Corporation (same extent the “Requisite Consents”)Company would have been able to had the Merger not occurred and without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Cybergold Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts (x) that are material to the business or operations of the Company or Company, (y) which by their terms seek to limit or define those activities in which the Company is (or the Surviving Entity would be) permitted or required to engage or (z) which involve amounts in excess of $10,000 or which are otherwise material to the business or operations of the Company and which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party to nor is it bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organizationorganization (other than offer letters for at-will employment in the Company’s standard form that do not contain any unfulfilled obligations relating to severance, bonus or option grants);
(v) any agreement or plan (including, any stock option plan, stock appreciation rights plan or stock purchase plan) any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually involving future payments in excess of $25,000;
(viii) any agreement of indemnification, guaranty reimbursement, guaranty, suretyship or suretyshipother obligation to assume or incur any obligation of a third party involving amounts in excess of $10,000 individually or $50,000 in the aggregate (other than indemnification obligations pursuant to the Company’s online click-through standard form agreement);
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment relating to future capital expenditures or involving future payments in excess of $25,000;
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties or any interest in any business enterprise enterprise, in each case outside of the ordinary course of the Company’s business;
(xii) any mortgagesmortgage, indenturesindenture, loans loan or credit agreementsagreement, security agreements agreement or other agreements agreement or instruments instrument relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 25,000 or more, other than purchases in the ordinary course of business;
(xiv) any construction contractscontracts involving amounts in excess of $10,000 individually or $50,000 in the aggregate;
(xv) any distribution, joint marketing, licensing or development agreement; oragreement involving amounts in excess of $10,000 individually or $50,000 in the aggregate;
(xvi) any insurance policies;
(xvii) any other agreement, contract or commitment that involves or could result in aggregate payments to or by the Company of $25,000 50,000 or more or is not cancelable by the Company without penalty within thirty ninety-one (3091) 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, all as noted in Section 2.12(b) of the Company Schedule, the The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”), except for such breaches, violations or defaults as would not result in liability to the Company in excess of $25,000 individually or $50,000 in the aggregate. Each Contract is in full force and effect and is not subject to any breach, default or violation thereunder of which the Company has knowledge 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 (including the Material Contracts) as are required or prudent to obtain in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation Agreements (the “Requisite Consents”).
Appears in 1 contract
Sources: Merger Agreement (Valueclick Inc/Ca)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) 2.15 of the Company ScheduleDisclosure Schedule (specifying the appropriate paragraph), neither the Company does not have, nor any of its Subsidiaries is not a party to to, nor is it bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson salesperson, any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any employee, or any consulting or sales agreement, contract contract, or commitment with a firm or other organization;
(vii) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan, stock issuance plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be acceleratedaccelerated or trigerred, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viiii) any fidelity or surety bond or completion bond;
(viiiv) any lease of real or personal property having a value individually in excess of $25,0005,000 individually or $20,000 in the aggregate;
(viiiv) any agreement of indemnification, guaranty indemnification or suretyshipguaranty;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xvi) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,00010,000 individually or $50,000 in the aggregate;
(xivii) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xiiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiiix) any purchase order or contract for the purchase of raw materials or the provision involving in excess of services involving $10,000 individually or more, other than purchases $50,000 in the ordinary course of businessaggregate;
(xivx) any construction contracts;
(xvxi) any dealer, distribution, joint marketing, licensing strategic alliance, affiliate or development agreement;
(xii) any agreement, contract or commitment to alter the Company’s interest in any Subsidiary, corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(xiii) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for use or distribution of the products, technology or services of the Company or any of its Subsidiaries; or
(xvixiv) any other agreement, contract or commitment that involves $10,000 individually or could result $50,000 in payments to or by the Company of $25,000 aggregate or more or and is not cancelable by the Company without penalty within thirty (30) days.
(b) Except for such alleged breachesEach Contract disclosed in the Disclosure Schedule or required to be disclosed pursuant to this Section 2.15 (each, violations a “Material Contract,” and defaultscollectively, the “Material Contracts”) is a valid 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 2.12(b) binding agreement of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or Subsidiaries, as the case may be bound (any such agreementbe, contract or commitment, a “Contract”). Each Contract and is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated with respect to the Company pursuant or any Subsidiaries of the Company and, to the Knowledge of the Company, any other party thereto, and none of the Company, any Subsidiaries of the Company or, to the Knowledge of the Company, any other party thereto is in default or breach under the terms of any such Material Contract, and, to the Knowledge of the Company, no event or circumstance has occurred that, with notice or lapse of time or both, could reasonably be expected to constitute any event of default thereunder. True and complete copies of each such Material Contract have been delivered to Parent.
(c) The Company has obtained, or will obtain and each of its Subsidiaries have fulfilled all material obligations required pursuant to each Contract to have been performed by the Company prior to the Effective Timedate hereof, and to the Knowledge of the Company, without giving effect to the Merger, the Company will fulfill, when due, all necessary consents, waivers and approvals of parties its obligations under the Material Contracts that remain to any Contract as are required in connection with be performed after the Merger and date hereof.
(d) All outstanding indebtedness of the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals Company or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)its Subsidiaries may be prepaid without penalty.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Epicor Software Corp)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business Except as contemplated by this Agreement or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth on Schedule 3.11, neither Almo nor the Sellers currently has or is a party to, or bound by with respect to any Acquired Asset or Key Employee (as defined in Section 2.12(a3.4(i) of the Company Schedule, the Company does not have, is not a party to nor is it bound by:hereof):
(ia) any collective bargaining agreements;
(iib) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iiic) any stock option, stock purchase, stock appreciation, bonus, deferred compensation, pension, severance, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(ivd) any agreement, contract, or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise except in the ordinary course of business;
(e) any employment or consulting agreement, contract or commitment agreement with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(vf) any agreement (or plan group of related agreements) for the lease of personal property to or from any person or entity having a value individually in excess of $10,000;
(g) any agreement of indemnification or guaranty;
(h) any agreement entered otherwise than in the ordinary course of business;
(i) to Almo and the Sellers' knowledge, any agreement that is likely to result in a loss in excess of $25,000 on completion of performance;
(j) any agreement (or group of related agreements) containing any covenant limiting the freedom of Almo or the Sellers to engage in any line of business or to compete with any person or entity that could reasonably be expected to impair or encumber the Acquired Assets (including, without limitation, any stock option planrestrictions on the marketing, stock appreciation rights plan or stock purchase plan) any license, and distribution of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebySeller Registered Intellectual Property);
(vik) any agreement (or group of related agreements) relating to capital expenditures and involving future payments in excess of $15,000;
(l) any agreement (or group of related agreements) under which payment in excess of $1,000 has already been received by Almo or the Sellers (whether in whole or in part) but which requires the performance of services after the Closing Date, except for credit balances included in Schedule 1.2(b);
(m) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually in excess of $25,000;
(viiin) any agreement of indemnificationpursuant to which Almo or the Sellers have advanced or loaned any amount to any director, guaranty officer, employee, or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage consultant other than business travel advances in any line of business or to compete with any person;
(x) any agreement, contract or commitment relating to capital expenditures or involving future payments in excess of $25,000;
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xiio) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by Almo or the Sellers or extension of creditcredit to Almo or the Sellers exclusive of routine trade payables, including guaranties involving obligations in excess of $5,000 or instruments under which Almo or the Sellers have imposed any lien on any of surety referred to in subparagraph (vi) abovethe Acquired Assets;
(xiiip) any purchase order or contract for the purchase of raw materials or the provision of services (excluding capital expenditures) involving $10,000 15,000 or more;
(q) any agreement concerning confidentiality, other than purchases except in the ordinary course of businesscourse;
(xivr) any construction contracts;
(xvs) any distribution, joint marketing, licensing development, or development partnership or joint venture agreement;
(t) any agreement pursuant to which Almo or the Sellers 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
(xviu) any other agreement, contract contract, lease, or commitment license (or series of related agreements, contracts, leases, and licenses) that involves or could result in payments to or by the Company payment of $25,000 10,000 or more or is not cancelable by the Company without penalty within thirty (30) daysmore.
(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, all as noted in Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”).
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company ScheduleSchedule 3.16, the Company does not have, no Buyer Group member is not a party to nor is it or bound by:
(i) 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 Buyer Group Benefit Plans or arrangements;
(iviii) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organizationnot terminable by the Buyer Group member on no more than 30 days' notice without liability;
(viv) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby by this Agreement;
(v) any agreement of indemnification or therebyguaranty not entered into in the ordinary course of business other than indemnification agreements between the Buyer Group member and any of its officers or directors;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually in excess of $25,000;
(viii) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company a Buyer Group member to engage in any line of business or to compete with any person;
(xvii) any agreement, contract or commitment relating to capital expenditures or and involving future payments obligations in excess of $25,00025,000 and not cancelable without penalty;
(xiviii) any agreement, arrangement, right, contract or commitment currently in force relating to the disposition or acquisition of assets, properties or any interest assets not in any business enterprise outside the ordinary course of the Company’s businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiiix) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiix) any purchase order joint marketing, sales or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of businessdevelopment agreement;
(xivxi) any construction contractsdistribution agreement (identifying any that contain exclusivity provisions);
(xvxii) any distribution, joint marketing, licensing or development royalty agreement; or
(xvixiii) any other agreement, contract or commitment that involves or could result in payments to or (excluding real and personal property leases) which involve payment by the Company Buyer Group member under any such agreement, contract or commitment of $25,000 10,000 or more or is not cancelable by in the Company without penalty within thirty (30) daysaggregate.
(b) Except for such alleged breachesSchedule 3.16 contains a complete and correct list of all Buyer Contracts (as defined below) which are valid and binding upon any Buyer Group member and to the Buyer's knowledge, violations and defaultsany other party to said Buyer Contract, and events that 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 constitute be obtained from an unrelated third party. No Buyer Group member, nor to the knowledge of Buyer, any other party to a breachBuyer Contract (as defined below), violation or default with the lapse of time, giving of notice, or both, all as noted in Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions of any agreementof the agreements, contract contracts or commitment commitments to which it a Buyer Group member is a party or by which it is bound of the type set forth in Schedule 3.16 or its assets or properties are or may be bound described in clauses (i) through (xiii) above (any such agreement, contract or commitment, a “"Buyer Contract”). Each Contract is ") in full force and effect and is not subject such a manner as would permit any other party to cancel or terminate any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtainedsuch Buyer Contract, or will obtain prior would permit any other party to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)seek damages.
Appears in 1 contract
Sources: Merger Agreement (Vizacom Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a) Except for the Customer Agreements set forth on SCHEDULE 3.10 and other agreements set forth on SCHEDULE 3.15 (true and correct copies of the Company Schedule sets forth all contracts that are material which have been made available to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”Buyer). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party to nor and it is it not bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(vii) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements Transactions or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyTransactions;
(viiii) any fidelity or surety bond or completion bond;
(viiiv) any lease of real or personal property having a value individually with fixed annual rental payments in excess of $25,00010,000;
(viii) any agreement of indemnification, guaranty or suretyship;
(ixv) any agreement, contract contract, commitment or commitment grant containing any covenant limiting the freedom of the Company or any of its subsidiaries to engage in any line of business or to compete with any person;
(xvi) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,00010,000 either individually or in the aggregate;
(xivii) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s 's business;
(xiiviii) any mortgagesmortgage, indenturesindenture, loans loan or credit agreementsagreement, security agreements agreement or other agreements agreement or instruments instrument relating to the borrowing of money or money, the extension of credit, including guaranties credit or instruments placing of surety referred to in subparagraph (vi) aboveLiens on any assets of the Company;
(xiiiix) any guaranty of any obligation for borrowed money or otherwise;
(x) any purchase order or contract for the purchase of raw materials or the provision involving in excess of services involving $10,000 either individually or more, other than purchases in the ordinary course aggregate;
(xi) any dealer, distribution, joint marketing or development agreement;
(xii) any sales representative, original equipment manufacturer, value added, remarketing or other agreement for distribution of businessthe Company's products or services;
(xiii) any collective bargaining agreement or contract with any labor union;
(xiv) any construction contracts;medical insurance or similar plan; or
(xv) any distribution, joint marketing, licensing or development agreement; or
(xvi) any other agreement, contract contract, commitment or commitment that involves or could result grant pursuant to which the obligations of any party thereto is in payments to or by the Company excess of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) days10,000.
(b) Except for such alleged breaches, violations To the best knowledge of each Shareholder 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 2.12(b) of the Company ScheduleSeller, the Company is in compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreementexisting agreement (including Customer Agreements), contract contract, grant, covenant, instrument, lease, license or commitment to which it the Company is a party or by which it or its assets or properties are or may be is bound (any such agreement, contract or commitmentcollectively, a “"Contract”"), nor is any Shareholder or the Seller aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each To the best knowledge of each Shareholder and the Seller, each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective TimeClosing Date, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all thereunder for such Contracts to remain in effect without modification or termination after the Surviving Corporation (Closing. Following the “Requisite Consents”)Closing Date, the Company will be permitted to exercise all of its rights under the Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay had the Transactions not occurred.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Accupoll Holding Corp)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) Paragraph 4.13 of the Company ScheduleDisclosure Letter, the Company does not havehave continuing obligations under, is not a party to nor is it bound by:
(ia) any collective bargaining agreements;
(iib) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations, other than as contemplated herein;
(iiic) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(ivd) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(ve) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement, except as provided herein;
(vif) any fidelity or surety bond or completion bond;
(viig) any lease of real or personal property having a value annual lease payments individually in excess of $25,000;
(viiih) any agreement of indemnification, indemnification or guaranty or suretyshipother than in the ordinary course of business;
(ixi) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xj) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,000;
(xik) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties material assets or any interest in any business enterprise outside the ordinary course of the Company’s 's business;
(xiil) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph clause (viviii) above;hereof.
(xiiim) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 25,000 or more, other than purchases in the ordinary course of business;
(xivn) any construction contracts;
(xvo) any distribution, joint marketing, licensing or development agreement; or
(xvi) any other agreement, contract or commitment that involves with any party which, during the last two fiscal years of the Company, accounted for, or could result in payments is expected to account during the Company's current fiscal year, for more than 5% of the Company's revenue or trade payables;
(p) any agreement for the acquisition of any sales agency or distribution rights by the Company to any motion picture;
(q) any agreement for the granting of $25,000 or more or is not cancelable any distribution right by the Company 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, all as noted in Section 2.12(b) of the Company Schedule, the to any other party. The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions of (i) any agreement, contract or commitment set forth in Paragraph 4.13 of the Disclosure Letter, or (ii) any other material agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be is bound (any such agreement, contract or commitment, a “Contract”"CONTRACT"). Each Contract is in full force and effect and and, except as otherwise disclosed in Paragraph 4.13 of the Disclosure Letter, is not subject to any default thereunder of which the Company has knowledge is aware by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective TimeClosing Date, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and transactions contemplated by this Agreement, or as are required or advisable in order to remain in effect without modification after the other transactions contemplated by this Agreement. Each Contract requiring any consent, waiver or third-party approval as a result of the transaction contemplated by this Agreement is disclosed in Paragraph 4.13 of the Disclosure Letter. Neither the execution of this Agreement nor consummation of the transactions contemplated hereby and by the Ancillary Agreementswill cause any default or breach under any Contract, including all such consentswithout limitation any key man clause in any Contract, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (acceleration of any payment obligation of the “Requisite Consents”)Company.
Appears in 1 contract
Sources: Stock Purchase Agreement (Team Communication Group Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company ScheduleAccurate has previously advised Gateway, the Company does not have, Accurate is not a party to nor is it bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(vii) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viiii) any fidelity or surety bond or completion bond;
(viiiv) any lease of real or personal property having a value individually with fixed annual rental payments in excess of $25,00010,000;
(viii) any agreement of indemnification, guaranty or suretyship;
(ixv) any agreement, contract contract, commitment or commitment grant containing any covenant limiting the freedom of the Company Accurate to engage in any line of business or to compete with any person;
(xvi) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,00010,000 either individually or in the aggregate;
(xivii) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s Accurate's business;
(xiiviii) any mortgagesmortgage, indenturesindenture, loans loan or credit agreementsagreement, security agreements agreement or other agreements agreement or instruments instrument relating to the borrowing of money or money, the extension of credit, including guaranties credit or instruments placing of surety referred to in subparagraph (vi) aboveliens on any assets of Accurate;
(xiiiix) any guaranty of any obligation for borrowed money or otherwise;
(x) any purchase order or contract for the purchase of raw materials or the provision involving in excess of services involving $10,000 either individually or more, other than purchases in the ordinary course aggregate;
(xi) any dealer, distribution, joint marketing or development agreement;
(xii) any sales representative, original equipment manufacturer, value added, remarketing or other agreement for distribution of businessAccurate's products or services;
(xiii) any collective bargaining agreement or contract with any labor union;
(xiv) any construction contractsbonus, pension, profit sharing, retirement or other form of deferred compensation plan;
(xv) any distribution, joint marketing, licensing medical insurance or development agreementsimilar plan; or
(xvi) any other agreement, contract contract, commitment or commitment that involves or could result grant pursuant to which the obligations of any party thereto is in payments to or by the Company excess of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) days10,000.
(b) Except for such alleged breaches, violations Accurate is in compliance with 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 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract contract, grant, covenant, instrument, lease, license or commitment to which it Accurate is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitmentcollectively, a “"Contract”"), nor is either Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company Accurate pursuant thereto. The Company Accurate has obtained, or will obtain prior to the Effective TimeClosing Date, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all thereunder for such Contracts to remain in effect without modification or termination after the Surviving Corporation (Closing. Following the “Requisite Consents”)Closing Date, Accurate will be permitted to exercise all of its rights under the Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which Accurate would otherwise be required to pay had the transactions contemplated by this Agreement not occurred.
Appears in 1 contract
Sources: Share Exchange Agreement (Gateway International Holdings Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the The Company Disclosure Schedule sets forth an accurate, correct and complete list of all contracts that are material agreements, contracts, commitments, arrangements and understandings, written or oral, including all amendments and supplements thereto (collectively, the "Material Contracts"), to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted a party or required to engage is bound, or by which require any consentof its assets are bound, approval and which involve:
(a) any present or waiver former employee or consultant or the employment of any person, including any consultant, which is not terminable at-will by the other parties thereto in connection with this AgreementCompany without liability to the Company;
(b) the future purchase of, any Ancillary Agreementor payment for, supplies or products, or the consummation future performance of services by a third party involving in any one case $30,000 or more;
(c) the transactions contemplated hereby sale or thereby supply of products or performance of services involving in any one case $30,000 or more;
(collectivelyd) any requirements or "take or pay" provisions;
(e) any arrangement continuing over a period of more than six months from the date hereof or exceeding $30,000 in value;
(f) any distribution, the “Material Contracts”). Except as set forth in Section 2.12(adealer, representative or sales agency agreement, contract, commitment, arrangement or understanding;
(g) of any lease under which the Company Scheduleis either lessor or lessee;
(h) the indemnification of any Person or the assumption of any Tax, the Company does not have, is not a party to nor is it bound by:environmental or other Liability;
(i) any collective bargaining agreementsfederal, state, local, regulatory or other governmental entities;
(iij) any agreements note, debenture, bond, equipment trust agreement, letter of credit agreement, loan agreement or arrangements that contain other contract or commitment for the borrowing or lending of money or agreement or arrangement for a line of credit or guarantee, pledge or undertaking of the indebtedness of any severance pay or post-employment liabilities or obligationsother person;
(iiik) any bonus, deferred compensation, pension, profit sharing charitable or retirement plans, or any other employee benefit plans or arrangementspolitical contribution;
(ivl) any employment capital expenditure or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(v) any agreement or plan (including, any stock option plan, stock appreciation rights plan or stock purchase plan) any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually leasehold improvement in excess of $25,00030,000;
(viiim) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting restraint on the freedom ability of the Company to engage or compete in any line of business manner or to compete with in any personbusiness;
(xn) any license, franchise, distributorship or other agreement which relates in whole or in part to any Company Intellectual Property Right or Company Third Party Intellectual Property Right; and
(o) any agreement, contract or commitment relating to capital expenditures or involving future payments in excess of $25,000;
(xi) any agreementcontract, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of business;
(xiv) any construction contracts;
(xv) any distribution, joint marketing, licensing or development agreement; or
(xvi) any other agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) days.
(b) 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 Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract arrangement or understanding that is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated otherwise material to the Company and not previously disclosed 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 as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)this Section 3.15.
Appears in 1 contract
Sources: Merger Agreement (Freemarkets Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) 3.12 of the Company Disclosure Schedule, the Company does not havehave continuing obligations under, is not a party to nor is it bound by:
(ia) any collective bargaining agreements;
(iib) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations, other than as contemplated herein or in the Employment Agreements (as defined below);
(iiic) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(ivd) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(ve) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement, except as provided herein;
(vif) any fidelity or surety bond or completion bond;
(viig) any lease of real or personal property having a value annual lease payments individually in excess of $25,000;
(viiih) any agreement of indemnification, indemnification or guaranty or suretyshipother than in the ordinary course of business;
(ixi) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xj) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,000;
(xik) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties material assets or any interest in any business enterprise outside the ordinary course of the Company’s 's business;
(xiil) any purchase order or contract for the purchase of raw materials involving $25,000 or more;
(m) any construction contracts;
(n) any agreement, contract or commitment, including distribution or agency or sales representative agreements, with any party which, during the last two fiscal years of the Company, accounted for, or is expected to account during the Company's current fiscal year, for more than 5% of the Company's revenue or trade payables;
(o) any agreement for the granting of any distribution right by the Company to any other party; or
(p) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph clause (viviii) above;
(xiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases hereof in the ordinary course of business;
(xiv) any construction contracts;
(xv) any distribution, joint marketing, licensing or development agreement; or
(xvi) any other agreement, contract or commitment that involves or could result an individual amount in payments to or by the Company excess of $25,000 or more or is not cancelable by the Company 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, all as noted in Section 2.12(b) of the Company Schedule, the 25,000. The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions of (i) any agreement, contract or commitment set forth in Schedule 3.12 of the Company Disclosure Schedule, or (ii) any other material agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be is bound (any such agreement, contract or commitment, a “Contract”"CONTRACT"). Each Contract is in full force and effect and and, except as otherwise disclosed in Schedule 3.12 of the Company Disclosure Schedule, is not subject to any default thereunder of which the Company has knowledge is aware by any party obligated to the Company pursuant thereto, other than late payments, nonpayment. The Company has obtained, or will obtain prior to the Effective TimeClosing Date, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and transactions contemplated by this Agreement, other than any consent required by Section 3.24, or as are required or advisable in order to remain in effect without modification after the other transactions contemplated by this Agreement. Each Contract requiring any consent, waiver or third-party approval as a result of the transaction contemplated by this Agreement is disclosed in Schedule 3.12 of the Company Disclosure Schedule. Neither the execution of this Agreement nor consummation of the transactions contemplated hereby and by the Ancillary Agreementswill cause any default or breach under any Contract, including all such consentswithout limitation any key man clause in any Contract, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (acceleration of any payment obligation of the “Requisite Consents”)Company.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section on ------------------------------------- Schedule 2.12(a) of the Company Schedule), the Company does not have, is not a party to nor is it bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;,
(iv) any employment or consulting agreement, contract or commitment agreement with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with under which a firm or other organization;organization provides services to the Company,
(v) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;by this Agreement,
(vi) any fidelity or surety bond or completion bond;,
(vii) any lease of real or personal property having a value individually in excess of $25,000;50,000,
(viii) any agreement of indemnification, guaranty indemnification or suretyship;guaranty,
(ix) any agreement, contract or commitment agreement containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;,
(x) any agreement, contract or commitment agreement relating to capital expenditures or and involving future payments in excess of $25,000;50,000,
(xi) any agreement, arrangement, right, contract or commitment agreement relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s 's business;,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph clause (viviii) above;hereof,
(xiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of business;,
(xiv) any construction contracts;,
(xv) any distribution, joint marketingmarketing (including any pilot program), licensing development, content provider, destination site or development merchant agreement; or;
(xvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party a source-code license or option or other agreementright to use or acquire source-code, contract or commitment or
(xvii) any other agreement that involves or could result in payments to or by the Company of $25,000 50,000 or more or is not cancelable by the Company 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 as noted in Section Schedule 2.12(b) of the Company Schedule), the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to which it is a party be set forth on Schedule 2.12(a) or by which it or its assets or properties are or may be bound Schedule 2.11(b) (any such agreement, contract or commitment, a “"Contract”"). Each -------- Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.12(b), is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Inktomi Corp)
Agreements, Contracts and Commitments. (ai) Section 2.12(a) of the The Company Disclosure Schedule sets forth a true, complete and correct list of all contracts that are material the following agreements, arrangements or understandings, whether written or oral, to the business or operations of which the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party to nor is it bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(v) any agreement or plan (including, any stock option plan, stock appreciation rights plan or stock purchase plan) any of its Subsidiaries is a party: (A) agreements relating to indebtedness for borrowed money (whether incurred, assumed, guaranteed, secured by any asset or otherwise) for amounts in excess of $25,000; (B) agreements for the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually in excess of $25,000;
(viii) to or from any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete Person with any person;
(x) any agreement, contract or commitment relating to capital expenditures or involving future lease payments in excess of $25,000;
25,000 per year; (xiC) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xii) any mortgages, indentures, loans or credit partnership agreements, security joint venture agreements or other similar agreements or instruments relating to the borrowing of money similar business arrangements; (D) confidentiality or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or more, noncompetition agreements other than purchases with respect to confidentiality agreements entered into in the ordinary course of business;
business for the benefit of the Company's or its Subsidiaries' vendors or customers; (xivE) profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plans or arrangements for the benefit of current or former employees or directors of the Company and its Subsidiaries; (F) collective bargaining or similar agreements; (G) agreements for the employment or retention of any construction contracts;
individual on a full-time, part-time, consulting, or other basis not terminable on less than thirty (xv30) days notice without penalty or cost; (H) agreements under which it has advanced or loaned any amount in excess of $5,000 to any of the employees or affiliates of the Company, except for reimbursable business expenses (as determined in accordance with the Company's established employee reimbursement policies and consistent with past practices); (I) agreements for the purchase or receipt of materials, software, supplies, goods, services, equipment or other assets that provide for either annual or aggregate payments by the Company or its Subsidiaries of $25,000 or more (other than Hydrocarbon Agreements); (J) sales, distribution, joint marketingvendor or other similar agreements or arrangements providing for the sale, licensing transfer or development agreement; or
(xvi) any barter by the Company or its Subsidiaries of materials, supplies, goods, services, equipment, or other agreement, contract assets that provide for either annual or commitment that involves or could result in aggregate payments to or by the Company of $25,000 or more (other than Hydrocarbon 14 Agreements); (K) agreements or is not cancelable by term sheets relating to the acquisition or disposition of any business or assets of the Company without penalty within thirty (30whether by merger, sale of stock, sale of assets or otherwise), excluding documentation relating to this Agreement and agreements or term sheets in existence prior to December 31, 1999; (L) daysHydrocarbon Agreements; (M) agreements containing any "area of mutual interest" or other similar provision; and (N) other agreements which are material to the Company (collectively the "Company Material Agreements").
(bii) 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 noticeThe Company has delivered, or bothmade available for copying at its offices in Knoxville, all as noted in Section 2.12(bTennessee or Marietta, Ohio, to Parent a true, complete and correct copy of each Company Material Agreement.
(iii) of the Each Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract Material Agreement is in full force and effect effect, has not been modified or amended and is constitutes the legal, valid and binding obligation of the Company or its Subsidiaries, as the case may be, enforceable in accordance with its terms and will continue to be so on identical terms immediately following the consummation of the transactions contemplated by this Agreement, and the Company or its Subsidiaries, as the case may be, are not subject in default under any of such agreements, nor has any event or circumstance occurred that, with notice or lapse of time or both, would constitute any event of default by the Company or its Subsidiaries, as the case may be. No other party to any default thereunder of which the Company has knowledge by any party obligated Material Agreements (A) is, to the knowledge of the Company, in default in the performance of any covenant or obligation to be performed by it pursuant to any such Company pursuant thereto. The Company Material Agreement or (B) has obtainedgiven notice that it intends to terminate, or will obtain prior alter in any way adverse to the Effective TimeCompany, all necessary consentsits performance under such Company Material Agreement. Except as set forth in the Company Disclosure Schedule, waivers and approvals neither the Company nor any of parties its Subsidiaries is a party to any Contract contract, agreement or arrangement which provides for payments in the event of a change of control.
(iv) Except as set forth on the Company Disclosure Schedule and as approved by Parent pursuant to Section 4.1(a), there are required in connection with no outstanding authorities for expenditures or AFEs or other commitments to make capital expenditures binding on the Merger and the other transactions contemplated hereby and Company or any of its Subsidiaries that could reasonably be anticipated to individually require expenditures by the Ancillary Agreements, including all such consents, approvals Company or waivers necessary to validly transfer and assign all such Contracts to its Subsidiaries after the Surviving Corporation (the “Requisite Consents”)date hereof in excess of $50,000.
Appears in 1 contract
Sources: Merger Agreement (Energy Search Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with Except for this Agreement, any Ancillary Agreement, or the consummation of Related Agreements and the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as Contracts set forth in Section 2.12(a3.11(d) of the Company Disclosure Schedule, none of the Company does not have, Group Companies is not a party to nor is it or bound byby and does not use the benefits of any of the following Contracts:
(i) (A) any Contract to grant any change of control payments, retention bonus, or similar benefit (in cash, equity, extension of benefits or otherwise) to any Employee, (B) any employment agreement, offer letter, or independent contractor agreement that is not immediately terminable at-will by the Group Companies without advance notice, severance, termination pay, or other cost or Liability, (C) any bonus, incentive compensation, or commission plan, policy or agreement with any Employee other than a Company Employee Plan, (D) any separation agreement or settlement agreement with any Employee or other Person under which any of the Group Companies has any current actual or potential Liability or under which the Company has any ongoing or future obligations, as well as any settlement agreement, consent decree, or other similar agreement with any Governmental Entity, or (E) any Contract with any labor union or any collective bargaining agreementsagreement or similar Contract with its Employees;
(ii) any agreements Contract or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonusplan, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(v) any agreement or plan (including, including any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the payments or benefits of which will would be increased, or the vesting of benefits of which will would be accelerated or may be accelerated, by the occurrence of any of the transactions contemplated by this Agreement Transactions (whether alone or the Ancillary Agreements or the value of in combination with any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyother event(s));
(vi) any fidelity or surety bond or completion bond;
(viiiii) any lease of any real property or personal property having a value individually in an amount in excess of $25,00015,000;
(viiiiv) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment Contract relating to capital expenditures or and involving future payments in any amount in excess of $25,00050,000 individually or $100,000 in the aggregate, in each case in any fiscal year;
(xiv) any agreement, arrangement, right, contract or commitment Contract relating to the disposition or acquisition of assets, properties ownership of any material assets or any material interest in any business enterprise outside the ordinary course Ordinary Course of the Company’s businessBusiness;
(xiivi) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit or other Indebtedness;
(vii) any purchase order or Contract for the purchase of tangible items of equipment or related services in any amount in excess of $25,000 individually or $50,000 in the aggregate, including guaranties in each case in any of the prior three (3) fiscal years;
(viii) any Contract with a Top Vendor;
(ix) omitted;
(x) any Contract with a Top Referral Partner;
(xi) any Contract with a Top Affiliate Partner;
(xii) any Contract pursuant to which any Group Company receives mail processing or instruments similar services in support of surety referred to in subparagraph (vi) aboveits registered agent operations;
(xiii) any purchase order or contract for confidentiality and non-disclosure agreements (whether any Group Company is the purchase of raw materials beneficiary or the provision of services involving $10,000 or moreobligated party thereunder), other than purchases (x) the current forms of confidentiality agreements used with Employees that have been made available to Buyer and (y) those related to commercial transactions in the ordinary course Ordinary Course of businessBusiness that are not individually material;
(xiv) any construction contractsContract required to be disclosed on Section 3.9 of the Disclosure Schedule;
(xv) any distributionContract with federal, joint marketingstate, licensing city, county, parish, municipal or development agreement; orother Governmental Entities;
(xvi) (A) any management service, legal partnership or joint venture Contract, (B) any Contract that involves a sharing of revenues, profits, cash flows, expenses or losses with other Persons and (C) any Contract that involves the payment of royalties or other similar payments to any other agreementPerson;
(xvii) any agency, contract dealer, distribution, sales representative, remarketer, reseller, or commitment other Contract for the distribution of Company Products (other than agreements with resellers and channel partners entered into in the Ordinary Course of Business and with terms that involves or could result do not materially deviate from the terms set forth in payments any of the Group Companies’ Standard Form Agreement for resellers made available to Buyer);
(xviii) any Contract pursuant to which any Group Company is bound to or has committed to provide any product or service to any third party on a most favored nation basis or similar terms;
(xix) any Contract granting any license or other rights to or from any Group Company with respect to Protected Information, other than grants to service providers to use such Protected Information in connection with the provision of services to any Group Company;
(xx) any standstill or similar agreement containing provisions prohibiting a third party from purchasing Equity Interests of any Group Company or assets of any Group Company or otherwise seeking to influence or exercise control over any Group Company;
(xxi) any Contract pursuant to which any of the Group Companies has acquired a business or entity, or a material portion of the assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets, exclusive license or otherwise, or any Contract pursuant to which it has any material ownership interest in any other Person;
(xxii) any agreement of indemnification with officers, directors, members or managers of any Group Company;
(xxiii) any Contract with any investment banker, broker, advisor or similar party, in connection with this Agreement and the Transactions;
(xxiv) any Contract with any Person pursuant to which the Company sold or repurchased any of its equity securities; and
(xxv) any Contract or other arrangement to settle any Legal Proceeding or to settle any threatened or reasonably anticipated Legal Proceeding (A) involving a claim or dispute value greater than $25,000 or more or is (B) that has not cancelable by the Company without penalty within thirty (30) daysbeen fully and finally settled.
(b) Except for such alleged breachesThe Company has made available true, violations correct and defaultscomplete copies of each Contract required to be disclosed pursuant to Sections 3.9, 3.10(b), 3.11 and 3.12(a). For the purposes of this Agreement, each of the foregoing Contracts referenced in this subsection 3.12(b) shall be a “Material Contract” and collectively are the “Material Contracts.”
(c) Each of the Group Companies has performed in all material respects all of the obligations required to be performed by it and is entitled to all benefits under, and events that would constitute a breachis not alleged to be in material default in respect of, violation or default with the lapse of time, giving of notice, or both, all as noted in Section 2.12(b) any Material Contract. Each of the Material Contracts is valid, binding and enforceable against the applicable Group Company Schedule, (to the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it extent such entity is a party or by which it or its assets or properties are or may be bound (any to such agreementMaterial Contract), contract or commitment, a “Contract”). Each Contract and is in full force and effect effect, subject only to the effect, if any, of the Bankruptcy and is not subject Equity Exception. There exists no default or event of default or event, occurrence, condition or act, with respect to the Group Companies, or to the Knowledge of the Company, with respect to any other contracting party to a Material Contract, that, with the giving of notice, the lapse of time or the happening of any other event or condition, would reasonably be expected to (i) become a default thereunder or event of which default under any Material Contract or (ii) give any third party (A) the Company right to declare a default or exercise any remedy under any Material Contract, (B) the right to accelerate the maturity or performance of any obligation of the Group Companies under any Material Contract, or (C) the right to cancel, terminate or modify any Material Contract. None of the Group Companies has knowledge by received any party obligated notice or, to the Company pursuant theretoKnowledge of the Company, other communication regarding any actual or possible violation or breach of, default under, or intention to cancel or modify any Material Contract. None of the Group Companies has any Liability for renegotiation of Contracts with Governmental Entities. The Company has obtainedheretofore made available to Buyer true, or will obtain prior to correct and complete copies of each Material Contract, together with any and all material amendments and supplements thereto and “side letters” and similar documentation relating thereto.
(d) To the Effective TimeKnowledge of the Company, all necessary consents, waivers and approvals of parties no counterparty to any Contract as are required described in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals Section 3.12(a)(x) has proposed or waivers necessary intends to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)effectuate an address change.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) As of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consentdate hereof, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except except as set forth in Section 2.12(a) 4.38 of the Company LEXON Disclosure Schedule, the Company does not have, LEXON is not a party to nor is it bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iva) any employment or consulting agreement, contract or commitment commitment, other than confidentiality agreements, with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;,
(vb) any agreement or plan (plan, including, without limitation, any stock option planplans, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;by this Agreement,
(vic) any fidelity or surety bond or completion bond;,
(viid) any lease of real or personal property having a value individually in excess of $25,000;50,000 or $100,000 in the aggregate,
(viii) any agreement of indemnification, guaranty or suretyship;
(ixe) any agreement, contract or commitment containing any covenant limiting the freedom of the Company LEXON to engage in any line of business or to compete with any person;,
(xf) any agreement, contract or commitment relating to capital expenditures or involving future payments in excess of $25,000;expenditures,
(xig) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s business;business of LEXON and the LEXON Subsidiaries,
(xiih) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;,
(xiiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of business;materials,
(xivj) any construction contracts;contracts involving future obligation of LEXON or any LEXON Subsidiary,
(xvk) any dealer, distribution, joint marketing, licensing marketing or development agreement; ,
(l) any sales representative, original equipment manufacturer, value added, remarketer, reseller or independent software vendor or other agreement for use or distribution of the products or services of LEXON or any LEXON Subsidiary, or
(xvim) any other agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) days.
(b) 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 Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”).
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(aNeither Company nor any of its subsidiaries (x) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party to nor any of the following Contracts that are currently in effect or pursuant to which any liability exists or could arise in the future or (y) is it bound byby any of the following Contracts:
(i) any collective bargaining agreementsemployment, contractor or consulting agreement, or Contract with an employee or individual consultant, contractor, or salesperson, that is not an at-will employment or services agreement providing no severance or other post-termination benefits (other than continuation coverage required by law);
(ii) any agreements or arrangements that contain Contract to grant any severance or termination pay or post-employment liabilities benefits (in cash or obligations;
(iiiotherwise) to any bonusemployee, deferred compensation, pension, profit sharing or retirement plansindividual consultant, or any other employee benefit plans or arrangements;
(iv) any employment or contractor, consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment working with a firm or other organization;
(viii) any agreement Contract or plan (plan, including, without limitation, any stock option plan, stock appreciation rights right plan, stock purchase plan or stock purchase plan) other equity incentive plan (regardless if awards issued thereunder are settled in stock, cash or other property), any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions (either alone or upon the occurrence of any additional or subsequent events) contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions (either alone or upon the occurrence of any additional or subsequent events) contemplated hereby by this Agreement, except as expressly provided for in Section 2.1(b) or therebySection 2.1(c);
(iv) any Contract of indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or license or purchase of products or services in the ordinary course of business;
(v) any Contract currently in force relating to the disposition or acquisition by Company or any of its subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company’s subsidiaries;
(vi) any fidelity dealer, distributor, joint marketing or surety bond development agreement currently in force under which Company or completion bondany of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(vii) any lease of real Contract currently in force to provide source code to any third party for any product or personal property having technology that is material to Company and its subsidiaries taken as a value individually in excess of $25,000whole;
(viii) any agreement Contract currently in force to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company products, service or technology except agreements with distributors or sales representative in the normal course of indemnification, guaranty business cancelable without penalty upon notice of ninety (90) days or suretyshipless and substantially in the form previously provided to Acquiror;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment relating to capital expenditures or involving future payments in excess of $25,000;
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments Contracts relating to the borrowing of money or extension of credit;
(x) any material settlement Contract entered into within five (5) years prior to the date of this Agreement
(xi) any Contract containing any covenant (A) limiting in any respect the right of Company or any of its subsidiaries to engage in any line of business, including guaranties to make use of any Company Intellectual Property or instruments compete with any person in any line of surety referred business, (B) granting any exclusive rights, (C) granting any person “Most Favored Nations” or similar status, or (D) otherwise having an adverse effect on the right of Company and/or its subsidiaries to sell, distribute or manufacture any products or services or to purchase or otherwise obtain any software, components, parts or subassemblies;
(xii) any “material contracts” (as such term is defined in subparagraph (viItem 601(b)(10) aboveof Regulation S-K of the SEC) with respect to Company or its subsidiaries;
(xiii) any purchase order Contracts providing for any joint venture, partnership or contract for similar arrangement involving the purchase sharing of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of businessprofits;
(xiv) any construction contracts;Contract with any labor union, works council, or other labor organization or entity or any collective bargaining agreement or similar Contract with its employees; or
(xv) any distribution, joint marketing, licensing other Contract that involve current or development agreement; or
(xvi) any other agreement, contract future obligations to a third party or commitment that involves current or could result in payments future obligations to or by the Company of $25,000 50,000 or more individually or is not cancelable by the termination of which would reasonably be expected to materially affect Company without penalty within thirty (30) daysand its subsidiaries, taken as a whole.
(b) Except for Neither Company nor any of its subsidiaries, nor to Company’s knowledge any other party to any of the Contracts to which Company or any of its subsidiaries is a party or by which it is bound that are required to be disclosed in the Company Disclosure Letter (any such alleged breachesContract, violations and defaultsa “Company Contract”), and events that would constitute a is in material breach, violation or default with the lapse of time, giving of notice, or both, all as noted in Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or and neither Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any agreement, contract of the Company Contracts in such a manner as would permit any other party to cancel or commitment to which it is a party or by which it or its assets or properties are or may be bound (terminate any such agreementCompany Contract, contract or commitmentwould be material to the business of Company as currently conducted.
(c) Each material Company Contract is, a “Contract”with respect to Company or any of its subsidiaries (as applicable). Each Contract is , and, to the knowledge of Company with respect to the other party thereto, valid and in full force and effect effect, and is not enforceable in accordance with its terms, subject to any default thereunder (i) laws of which the Company has knowledge by any party obligated general application relating to the Company pursuant thereto. The Company has obtainedbankruptcy, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)equitable remedies.
Appears in 1 contract
Sources: Merger Agreement (Insightful Corp)
Agreements, Contracts and Commitments. (a) Section 2.12(a) For purposes of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, “Contract” shall mean any Ancillary Agreementwritten or oral contract, agreement, purchase or sale order, instrument, license, commitment, undertaking or similar arrangement in each case relating to the Product or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”)Aeroquin™ IP. Except as set forth in Section 2.12(a) on Sections 4.10.1-4.10.23 of the Disclosure Schedule, neither the Company nor any of the Company Schedule, the Company does not have, Subsidiaries is not a party to nor to, or is it bound by:
(i) any collective bargaining agreements;4.10.1 [intentionally omitted]
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) 4.10.2 any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson (other than “at will” employment agreements entered into in the Ordinary Course of Business that do not provide for severance payments, a notice period upon termination, change of control payments or consulting acceleration of obligations (including vesting of options or sales agreement, contract or commitment with a firm or other organizationotherwise)) involving future payments in excess of [*];
(v) 4.10.3 any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase planplan (A) relating to the sale, issuance, grant, exercise, award, purchase or redemption of any shares of Company Capital Stock or any other securities of the Company or any of the Company Subsidiaries or any options, warrants, convertible notes or other rights to purchase or otherwise acquire any such shares of stock, other securities or options, warrants, or other rights therefor, or (B) any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(vi) 4.10.4 any fidelity or surety bond or completion bond;
(vii) 4.10.5 any lease of real or personal property having a value individually in excess of $25,000[*] individually or [*] in the aggregate;
(viii) 4.10.6 any agreement of indemnification, guaranty or suretyshipguaranty;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) 4.10.7 any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,000[*] individually or [*] in the aggregate;
(xi) 4.10.8 any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xii) 4.10.9 any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;; * Confidential treatment requested.
(xiii) 4.10.10 any purchase order or contract for the purchase of raw materials involving payments in excess of [*] individually or the provision of services involving $10,000 or more, other than purchases [*] in the ordinary course of businessaggregate;
(xiv) 4.10.11 any construction contracts;
(xv) any partnership, dealer, distribution, joint marketing, licensing joint venture, joint development, strategic alliance, affiliate, or development agreement or similar agreement, including, without limitation, any Contract pursuant to which the Company or any Company Subsidiary grants or has granted to any person the right to manufacture, develop or market the Product or any product containing levofloxacin compound;
4.10.12 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 the Company Subsidiaries involving payments in excess of [*] individually or [*] in the aggregate;
4.10.13 any Contract limiting in any respect the right of the Company or any of the Company 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 Proprietary Rights, 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 the Company Subsidiaries to sell, distribute or manufacture the Product;
4.10.14 any Contract with any clinical research organization providing clinical trial services for any clinical trial for any product containing inhaled levofloxacin compound;
4.10.15 any Contract that would require the consent of any Person in order to consummate any of the transactions contemplated by this Agreement, the Development Agreement, the Merger Agreement or the License Agreement;
4.10.16 any Contract (other than Contracts evidencing Company Options or Company Warrants) (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or similar right with respect to any securities, or (C) providing the Company with any right of first refusal with respect to, or right to repurchase, redeem, put or call, any securities;
4.10.17 any Contract relating to the creation of any Encumbrance (other than Permitted Encumbrances) with respect to any material asset of the Company or any Company Subsidiary;
4.10.18 any Contract providing for the sharing of revenues, profits, losses, costs, assets or liabilities; * Confidential treatment requested.
4.10.19 any Contract (A) containing “standstill” or similar provisions relating to transactions involving the acquisition, disposition or other transfer of assets or securities of the Company or any Company Subsidiary, or (B) providing any right of first negotiation, right of first refusal or similar right to any Person;
4.10.20 any material Contract related to the Product not already required to be listed in Section 4.10;
4.10.21 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 business;
4.10.22 any settlement or litigation “standstill” agreement; or
(xvi) 4.10.23 any other agreementContract, contract if a breach of such Contract or commitment that involves the termination of such Contract would reasonably be expected to have or could result in payments a Material Adverse Effect. True and complete copies of each Contract disclosed in the Disclosure Schedule or required to or by be disclosed pursuant to this Section 4.10 (each a “Material Contract” and collectively, the “Material Contracts”) have been made available to Axcan. Each Material Contract to which the Company of $25,000 or more or is not cancelable by the Company 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, all as noted in Section 2.12(b) any of the Company Schedule, Subsidiaries is a party or any of its properties or assets (whether tangible or intangible) is subject is a legally valid and binding agreement of the Company has or its Subsidiary, enforceable against the Company or the Company Subsidiaries in accordance with its terms, and is in full force and effect with respect to the Company or its Subsidiary, subject to (i) Laws of general application relating to bankruptcy, insolvency, moratorium or similar Laws affecting creditors’ rights and the relief of debtors and (ii) rules of Law and general principles of equity governing specific performance, injunctive relief and other equitable remedies (regardless of whether such enforceability is considered in a proceeding in equity or at law). The Company and the Company Subsidiaries are in material compliance with and have not materially breached, violated or defaulted under, or received written notice or notice via electronic mail that it has materially breached, violated or defaulted under, any of the terms or conditions of any agreementsuch Material Contract. To the Knowledge of the Company, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any no party obligated to the Company pursuant thereto. The Company to any such Material Contract has obtainedbreached, violated or defaulted under such Material Contract, or will obtain prior 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. There is no event or circumstance that with notice or lapse of time, or both, would be reasonably likely to (i) constitute a default by the Company or any Company Subsidiary or (to the Effective Timeknowledge of the Company) any other party under any Material Contract, all necessary consents(ii) result in a material violation or breach of any of the provisions of any Material Contract by the Company or any Company Subsidiary or (to the knowledge of the Company) any other party, waivers (iii) give the Company or any Company Subsidiary or (to the knowledge of the Company) any other Person the right to declare a default or exercise any remedy under any Material Contract, (iv) give the Company or any Company Subsidiary or (to the knowledge of the Company) any other Person * Confidential treatment requested. the right to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Material Contract, (v) give the Company or any Company Subsidiary or (to the knowledge of the Company) any other Person the right to accelerate the maturity or performance of any Material Contract, or (vi) give the Company or any Company Subsidiary or (to the knowledge of the Company) any other Person the right to cancel, terminate or modify any Material Contract. Except as set forth in Sections 4.10.1-4.10.23 of the Disclosure Schedule, each Contract with a clinical research organization providing clinical trial services is terminable and approvals may be discontinued by the Company at will (upon delivery of parties to any Contract as are required notice of not more than 90 calendar days) without penalty or cost (other than reimbursement for previously incurred or committed expenses) in connection with the Merger and the other transactions contemplated hereby and termination by the Ancillary AgreementsCompany of the applicable research program to which such Contract relates or the preclinical or clinical development program to which such Contract relates. Each of the Contracts entered into to establish a clinical trial at any clinical site conforms in form substantially with the standard form used by the Company as of the date of such Contract. To the knowledge of the Company, including all such consents, approvals there has not been any Material Adverse Effect to any clinical trial conducted by the Company or waivers necessary to validly transfer and assign all any Company Subsidiary resulting in whole or in part from the breach of any such Contracts by the clinical site or sponsor participating therein under any such Contracts. Sections 4.10.1-4.10.23 of the Disclosure Schedule sets forth all Company Contracts that relate to the Surviving Corporation Company’s license and development rights to the Product (the “Requisite ConsentsProduct Contracts”), and all such Product Contracts are valid, binding and enforceable (except as to the effect, if any, of (i) applicable bankruptcy and other similar laws affecting the rights of creditors generally and (ii) Legal Requirements governing specific performance, injunctive relief and other equitable remedies) in accordance with their terms against the Company, and, to the knowledge of the Company, each other party thereto, and are in full force and effect; neither the Company nor any Company Subsidiary has received any notice or other communication (in writing or, to the knowledge of the Company, otherwise) regarding any actual or possible violation or breach of, or default under any Product Contract, and the Company has not waived any of its material rights under any Product Contract; the Company has made available accurate and complete copies of each written Product Contract to Axcan; and neither the execution, delivery or performance of this Option Agreement, the Development Agreement and the Merger Agreement, nor the transactions contemplated thereunder will constitute or give rise to a default under any Product Contract or require the Consent of any other party to any Product Contract, except for those Consents included in the list on Sections 4.10.1-4.10.23 of the Disclosure Schedule.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) 2.17 of the Company ScheduleDisclosure Schedule (specifying the appropriate paragraph), neither the Company does not have, nor any of its Subsidiaries is not a party to to, nor is it bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson (other than “at will” employment agreements entered into in the ordinary course of business that do not provide for severance payments, a notice period upon termination, change of control payments, acceleration of obligations (including vesting of options or otherwise) or other benefits not disclosed in Section 2.24(b) of the Disclosure Schedule), any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any employee, or any consulting or sales agreement, contract contract, or commitment with a firm or other organization;
(vii) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase planplan (A) relating to the sale, issuance, grant, exercise, award, purchase or redemption of any shares of Company Capital Stock or any other securities of the Company or any of its Subsidiaries or any options, warrants, convertible notes or other rights to purchase or otherwise acquire any such shares of stock, other securities or options, warrants, or other rights therefore, except for the Plan, or (B) any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viiii) any fidelity or surety bond or completion bond;
(viiiv) any lease of personal property having a value in excess of $25,000 individually or $100,000 in the aggregate;
(v) any lease of real property;
(vi) any agreement of indemnification or personal property having a value individually guaranty (except pursuant to End User Agreements);
(vii) any agreement of indemnification under any End User Agreement that could result in an indemnification payment by the Company or any of its Subsidiaries in excess of $25,000two (2) times the value of total payments to the Company or its Subsidiaries under such agreement;
(viii) any agreement agreement, contract or commitment relating to capital expenditures and involving future payments in excess of indemnification, guaranty $25,000 individually or suretyship$100,000 in the aggregate;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment relating to capital expenditures or involving future payments in excess of $25,000;
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xiix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiixi) any purchase order or contract for the purchase of raw materials or the provision involving payments in excess of services involving $10,000 individually or more, other than purchases $50,000 in the ordinary course of businessaggregate;
(xivxii) any construction contracts;
(xvxiii) any partnership, dealer, distribution, joint marketing, licensing joint venture, strategic alliance, affiliate, development agreement or development similar agreement;
(xiv) 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;
(xv) 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;
(xvi) 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 or manufacture any Company Product or to purchase or otherwise obtain any software, components, parts or services;
(xvii) 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 of any of its Subsidiaries’ business;
(xviii) any settlement or litigation “standstill” agreement; or
(xvixix) other than customer purchase orders arising in the ordinary course of business to the extent that the purchase or sale provided for therein has been performed in full on or prior to the date of this Agreement, any other agreement, contract or commitment that involves or could result payments in payments to or by the Company excess of $25,000 individually or $100,000 in the aggregate or more or and is not cancelable by the Company without penalty within thirty (30) 30 days.
(b) Except for such alleged breachesTrue and complete copies of each Contract disclosed in the Disclosure Schedule or required to be disclosed pursuant to this Section 2.17 (each a “Material Contract” and collectively, violations the “Material Contracts”) have been delivered to Parent. Each Material Contract to which the Company or any of its Subsidiaries is a party or any of its properties or assets (whether tangible or intangible) is subject is a valid and 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 2.12(b) binding agreement of the Company Scheduleor its Subsidiary, enforceable against the Company has or its Subsidiaries and, to the Knowledge of the Company, 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 agreementsuch Material Contract and, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (the Company’s Knowledge, any such agreementother Contract. To the Company’s Knowledge, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any no party obligated to the Company pursuant thereto. to any such Material Contract has breached, violated or 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.
(c) The Company has obtained, and each of its Subsidiaries have fulfilled all material obligations required pursuant to each Material Contract to have been performed by the Company or will obtain such Subsidiary prior to the Effective Timedate hereof, and to the Knowledge of the Company, without giving effect to the Merger, the Company will fulfill, when due, all necessary consentsof its obligations under the Material Contracts that remain to be performed after the date hereof.
(d) To the Knowledge of the Company and its Subsidiaries, waivers and approvals of parties with respect to any Contract Government Contract, there is, as are required in connection with of the Merger and date of this Agreement, no: (i) claim or request by a Governmental Entity for a contract price adjustment; (ii) dispute involving the other transactions contemplated hereby and Company or any of its Subsidiaries; or (iii) claim or equitable adjustment by the Ancillary Agreements, including all such consents, approvals Company or waivers necessary to validly transfer and assign all such Contracts to any of its Subsidiaries. Neither the Surviving Corporation (the “Requisite Consents”)Company nor any of its Subsidiaries has any material liability for renegotiation of Government Contracts.
Appears in 1 contract
Sources: Merger Agreement (Altiris Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(aSchedule 3.12(a) of the Company Disclosure Schedule sets forth all contracts that are material to the business or operations a list of the Company or which by their terms seek to limit or define those activities in which Contracts the Company is permitted or required a party to engage or which require any consentas of immediately prior to the Closing, approval or waiver by the other parties thereto in connection with except for this Agreement, any Ancillary Agreement, or the consummation of Related Agreements and the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Contracts specifically identified on Section 2.12(a3.11(d) of the Company Disclosure Schedule, the Company does not have, is not a party to nor is it bound by:
(i) (A) any collective bargaining agreementstype of employment, contractor or consulting Contract used by the Company with respect to any current Employee (other than with respect to administrative staff), (B) any Contract to grant any severance, change of control payments, retention bonus, or termination pay (in cash or otherwise) to any current Employee, (C) any other form of Employee Agreement with a current Employee (other than with respect to administrative staff, any Personnel Agreements or any individual agreements pursuant to the forms of employment, contractor or consulting agreements provided under Section 3.12(a)(i)(A)), (D) each employment agreement or offer letter that is not immediately terminable at-will by the Company without advance notice, severance, or other cost or liability, (E) any form bonus or commission plan, or any bonus agreements or commission agreements or commitments with any current Employee, (F) any separation agreement or settlement agreement with any current or former employee pursuant to which the Company has any current actual or potential Liability or ongoing obligation, and (G) any settlement agreement, consent decree, or other similar agreement with any Governmental Entity, (1) pursuant to which claims for harassment or discrimination were specifically released; or (2) under which the Company has any current actual or potential Liability;
(ii) any agreements Contract or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonusplan, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(v) any agreement or plan (including, including any stock option or incentive plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will shall be increased, or the vesting of benefits of which will shall be accelerated or may be accelerated, by solely based on the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will shall be calculated solely on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(vi) any fidelity or surety bond or completion bond;
(viiiii) any lease of any real property or material personal property having a value individually in excess of $25,000property;
(viiiiv) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment Contract relating to capital expenditures or and involving future payments in excess of $25,00040,000 in any fiscal year;
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xiiv) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties credit or instruments of surety referred to in subparagraph other Indebtedness;
(vi) aboveany purchase order or Contract for the purchase of tangible items of equipment or related services in any amount in excess of $40,000 in any fiscal year;
(vii) any Inbound License;
(viii) any Outbound License;
(ix) any confidentiality and non-disclosure agreements (whether the Company is the beneficiary or the obligated party thereunder), other than those related to commercial transactions in the Ordinary Course of Business;
(x) any Contract providing for “offshoring” or outsourcing development of any material items of Company Software by, for or on behalf of the Company;
(xi) any Contract with federal, state, city, county, parish, municipal or other Governmental Entities;
(xii) (A) any management service, legal partnership or joint venture Contract, and (B) any Contract that involves a sharing of revenues, profits or cash flows with other Persons;
(xiii) any purchase order agency, dealer, distribution, sales representative, remarketer, reseller, or contract other Contract for the purchase distribution of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of businessCompany Products;
(xiv) any construction contractsContract pursuant to which the Company is bound to or has committed to provide any product or service to any third party on a “most favored nation,” “most favored pricing,” or “most favored access” basis, or similar terms;
(xv) any distributionContract granting any license or other rights in, joint marketing, licensing to or development agreement; orfrom the Company with respect to Personal Information or Third Party Data;
(xvi) any Contract pursuant to which the Company has acquired, or has agreed to acquire, a business or entity, or a material portion of the assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets, exclusive license or otherwise, or any Contract pursuant to which it has any material ownership interest in any other agreementPerson;
(xvii) any agreement of indemnification with Employees of the Company;
(xviii) any Contract with any investment banker, contract broker, advisor or commitment similar party, or any accountant, legal counsel or other Person retained by the Company, in connection with this Agreement and the transactions contemplated hereby;
(xix) any Contract or other arrangement to settle any Legal Proceeding or to settle any threatened or reasonably anticipated Legal Proceeding; and
(xx) any other Contract, without duplication of the foregoing, that involves or could result in payments the payment to or by from the Company in excess of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) days40,000 in any fiscal year.
(b) Except The Company has made available correct and complete copies of each Contract required to be disclosed pursuant to Sections 3.2, 3.10, 3.11 (except for such alleged breacheseach Contract entered into on a Standard Form Agreement), violations 3.12 and defaults3.19(a). For the purposes of this Agreement, each of the foregoing Contracts referenced in this subsection 3.12(b) shall each be a “Material Contract” and collectively are the “Material Contracts.”
(c) The Company has performed in all material respects all of the obligations required to be performed by it and is entitled to all benefits under, and events that would constitute a breachhas not received written or, violation or default with to the lapse of time, giving of notice, or both, all as noted in Section 2.12(b) Knowledge of the Company ScheduleCompany, oral notice of being in default in respect of, any Material Contract. Each of the Material Contracts is valid, binding and enforceable against the Company has not breachedand the other parties thereto, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract and is in full force and effect effect, subject only to the effect, if any, of applicable bankruptcy and is not subject other similar Laws affecting the rights of creditors generally and rules of Law governing specific performance, injunctive relief and other equitable remedies. There exists no material default or event of default or event, occurrence, condition or act, with respect to the Company, that, with the giving of notice, the lapse of time or the happening of any other event or condition, would reasonably be expected to (i) become a material default thereunder or material event of which default under any Material Contract, or (ii) give any third party (A) the right to declare a material default or exercise any material remedy under any Material Contract, (B) the right to a material rebate, chargeback, refund, credit, penalty or change in delivery schedule under any Material Contract, (C) the right to accelerate the maturity or performance of any material obligation of the Company has knowledge by under any party obligated Material Contract, or (D) the right to the Company pursuant theretocancel, terminate or modify any Material Contract. The Company has obtainednot received any written notice or any other written communication regarding, and to the Knowledge of the Company, is not aware of, any actual or possible violation or breach of, default under, or will obtain prior intention of any party thereto to the Effective Timecancel or modify any Material Contract. The Company has heretofore made available to Parent (1) correct and complete copies of each written Material Contract together with any and all material amendments and supplements thereto and “side letters” and similar documentation relating thereto, all necessary consentsand (2) summaries of each oral Material Contract, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)if any.
Appears in 1 contract
Sources: Merger Agreement (Comscore, Inc.)
Agreements, Contracts and Commitments. (aSCHEDULE 3.13(a) Section 2.12(alists all written contracts or other agreements not included on Schedule 3.12(g) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”)a party. Except as set forth in Section 2.12(a) of the Company Scheduleon SCHEDULE 3.13(a), the Company does has not have, been nor is not currently a party to nor is it bound by:by any of the following (whether written or oral):
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any health, medical, dental, life or other employee welfare benefit plans or arrangements;
(v) any tuition reimbursement, dependent care reimbursement or other tax-favored employee fringe benefit plans or arrangements;
(vi) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organization;organization provides services to the Company.
(vvii) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viviii) any fidelity or surety bond or completion bond;
(viiix) any lease of real agreement, contract or personal property having a value individually commitment under which it has limited or restricted its right to compete with any person in excess of $25,000any respect;
(viiix) any agreement of indemnification, guaranty indemnification or suretyshipguaranty;
(ixxi) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xxii) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,0005,000;
(xixiii) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s 's business;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of business;
(xiv) any construction contracts;
(xv) any distribution, joint marketing, licensing or development agreement; or
(xvi) any other agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) days.
(b) 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 Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”).
Appears in 1 contract
Sources: Agreement and Plan of Merger (North American Scientific Inc)
Agreements, Contracts and Commitments. (aA) Section 2.12(a) All of NetWorth's currently effective agreements, contracts and commitments are listed in Schedule 2.12, including the name of the Company Schedule sets forth contracting part, date of execution and termination, and copies of all such agreements, contracts that and commitments are material annexed as exhibits to schedule 12.
(B) Subject to the business or operations terms and conditions of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consentagreement included as part of Schedule 2.12, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company NetWorth does not have, is not a party to nor is it bound by:
(i1) any Any collective bargaining agreements;
(ii2) any Any agreements or arrangements that contain any unpaid severance pay or post-employment liabilities or obligations;
(iii3) any Any bonus, deferred compensation, incentive compensation, pension, profit profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv4) any Any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization, not terminable by NetWorth on thirty days notice without liability, except to the extent general principles of wrongful termination law may limit NetWorth's ability to terminate employees at will;
(v5) any Any agreement or plan (includingplan, including any stock option plan, stock appreciation rights right plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(vi6) any Any fidelity or surety bond or completion bond;
(vii7) any Any lease of real or personal property having a value individually in excess of $25,0005,000;
(viii) any 8) Any agreement of indemnification, indemnification or guaranty or suretyshipnot entered into in the ordinary course of business;
(ix9) any Any agreement, contract or commitment containing any covenant limiting the freedom of the Company NetWorth to engage in any line of business or to compete with any person;
(x10) any Any agreement, contract or commitment relating to capital expenditures or and involving future payments obligations in excess of $25,0002,000 in any single instance or $10,000 in the aggregate;
(xi11) any Any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties or any interest assets not in any business enterprise outside the ordinary course of the Company’s businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xii12) any Any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or money, extension of credit, including guaranties credit or instruments of surety referred to in subparagraph (vi) aboveguaranties;
(xiii13) any Any purchase order or contract for the purchase of raw materials or the provision acquisition of services assets involving $1,000 or more in any single instance or $10,000 or more, other than purchases more in the ordinary course of businessaggregate;
(xiv14) any Any construction contracts;
(xv15) any Any distribution, joint marketing, licensing marketing or development agreement; or;
(xvi16) any Any other agreement, contract or commitment that which involves or could result in payments to or by the Company of $25,000 1,000 or more in any single instance or more than $10,000 in the aggregate and is not cancelable by the Company without penalty within upon thirty (30) days' notice, other than standard end-user licenses of NetWorth's products and services in the ordinary course of business consistent with past practice, or
(17) Any agreement that is otherwise Material to NetWorth's business.
(bC) 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 Section 2.12(b(1) of the Company Schedule, the Company NetWorth has not breached, violated or defaulted under, or received notice any claim or threat that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (including those set forth in any of the NetWorth Schedules) in such agreement, contract manner as would permit any other party to cancel or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which terminate the Company 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 as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)same.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a3.18(a) of the Company Schedule sets forth Disclosure Schedule, lists all contracts that are material to the business or operations of the Company or which by their terms seek following to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party to nor is it or bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson salesperson, or consulting or sales agreement, contract contract, or commitment with a firm or other organizationorganization (other than offer letters, employee invention assignment agreements and option agreements pursuant to the Company's standard form previously provided to Parent; provided that there are no substantive modifications from such form; and provided, further, in the case of employee invention assignment agreements, that the employee has not excepted any inventions that are related to any Intellectual Property used in connection with Company Products);
(vii) any agreement Contract or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements any subsequent event or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viiii) any fidelity or surety bond or completion bond;
(viiiv) any lease of real or personal property having a value individually in excess of $25,00025,000 individually or $50,000 in the aggregate;
(viii) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xv) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,00025,000 individually or $50,000 in the aggregate;
(xivi) any agreement, arrangement, rightcontract or commitment with customers of the Company that individually accounts for five percent (5%) or more of the Company's revenues;
(vii) any agreement, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s 's business;
(xiiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiiix) any purchase order or contract for the purchase of raw materials or the provision of services involving single source suppliers, custom manufacturers or involving in excess of $10,000 25,000 individually or more$50,000 in the aggregate;
(x) any construction contracts;
(xi) any dealer, distribution, joint marketing or development agreement;
(xii) any sales representative, original equipment manufacturer, value added, remarketer, distributor, reseller, or independent software vendor, or other agreement for distribution of the Company's products, technology or services by a third party;
(xiii) any Contract of indemnification or any guaranty other than purchases any Contract of indemnification entered into in connection with the sale, license, distribution and development of Intellectual Property and advertising in the ordinary course of business;
(xiv) any construction contractsContract currently in force to provide source code to any third party for any product or technology;
(xv) any distribution, joint marketing, licensing material settlement agreement entered into prior to the date of this Agreement pursuant to which the Company has continuing obligations or development agreement; orrights;
(xvi) any Contract not listed in Section 3.18 (a) through (xv) of the Company's Disclosure Statement under which the consequences of a default or termination would reasonably be anticipated to have a Material Adverse Effect on the Company;
(xvii) any executory agreement under which the Company has advanced or loaned any amount to any of its directors, officers, and employees;
(xviii) any revenue or profit participation Contract which involves aggregate annual payments of more than $20,000; or
(xix) any other agreement, contract or commitment Contract that involves or could result in payments to or by the Company of $25,000 individually or $50,000 in the aggregate or more or and is not cancelable by the Company without penalty within thirty (30) days.
(b) Except for such alleged breaches, violations and defaults, and events any other Contract that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all as noted in Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation cancelable without penalty within twelve (the “Requisite Consents”)12) months.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) SECTION 2.15 of the Company ScheduleDisclosure Schedule (specifying the appropriate subparagraph), the Company does not have, is not a party to to, nor is it bound by:by any of the following (each, a "MATERIAL CONTRACT"):
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iva) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson salesperson, or consulting or sales agreement, contract contract, or commitment with a firm or other organizationorganization providing for annual compensation or remuneration with an aggregate value in excess of $50,000;
(v) any agreement or plan (including, any stock option plan, stock appreciation rights plan or stock purchase plan) any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;
(vib) any fidelity or surety bond or completion bond;
(viic) any lease of real or personal property having a value individually in excess providing for annual payments by the Company of $25,00075,000 or more and which is not cancelable or terminable without penalty with notice of 60 or fewer days;
(viiid) any agreement of indemnification, indemnification or guaranty or suretyship(other than product warranties issued in the ordinary course of business consistent with past practice);
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xe) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,000100,000 annually or $500,000 in the aggregate;
(xif) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise (whether by merger, sale of stock, sale of assets or otherwise) outside the ordinary course of the Company’s 's business;
(xiig) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties credit providing for either (i) annual payments by the Company of $20,000 or instruments more or (ii) aggregate payments by the Company of surety referred to in subparagraph (vi) above$100,000 or more;
(xiiih) any purchase order or contract for the purchase of raw materials involving either (i) annual payments by the Company of $25,000 or more or (ii) aggregate payments by the provision Company and the Subsidiaries of services involving $10,000 100,000 or more, other than purchases in the ordinary course of business;
(xivi) any construction contractsagreement 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;
(xvj) any joint venture agreement;
(k) any dealer, distribution, joint marketing, licensing development sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or development agreementindependent 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
(xvim) any other agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 100,000 or more individually or $300,000 or more in the aggregate and is not cancelable by the Company without penalty within thirty with notice of sixty (3060) 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, all as noted in Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”).
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a2.11(a) of the Company Schedule Disclosure Letter sets forth all contracts that are material to the business or operations of the Company or any Subsidiary or which by their terms seek to limit or define those activities in which the Company or any Subsidiary is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, together with any agreements disclosed in Section 2.11(a) of the Disclosure Letter in response to the next sentence, the “Material Contracts”). Except as set forth in Section 2.12(a2.11(a) of the Company ScheduleDisclosure Letter, the Company or any Subsidiary does not have, is not a party to nor is it bound byby any of the following types of Material Contracts:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(v) except as set forth in Section 2.11(a)(v) of the Disclosure Letter, any agreement or plan (including, any stock option plan, stock appreciation rights plan or stock purchase plan) with respect to benefits any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;
(vi) any fidelity or surety bond or completion bond;
(vii) except as set forth in Section 2.11(a)(vii) of the Disclosure Letter, any lease of real or personal property having a value individually in excess of $25,00050,000;
(viii) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment relating to current or future capital expenditures or involving future payments individually in excess of $25,00050,000;
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 100,000 or more, other than purchases in the ordinary course of business;
(xiv) any construction contracts;
(xv) any distribution, joint marketing, licensing or development agreement;
(xvi) any agreement under which the Company’s products must satisfy any product standards or performance specifications or under which the Company has the right to include any logos, trademark, certification or similar endorsement of any third party organization on its products; or
(xvixvii) any other agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 100,000 or more or is not cancelable by the Company without penalty within thirty one hundred eighty (30180) 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, all as noted in Section 2.12(b2.11(b) of the Company ScheduleDisclosure Letter, the Company has not since June 30, 2003 breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Material Contract”). Each Material Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will use commercially reasonable efforts to obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract and all contracts and agreements as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary AgreementsAgreements in order to avoid any breach or default thereunder or the loss of any material rights thereunder, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts contracts and agreements to the Surviving Corporation Company (the “Requisite Consents”).
Appears in 1 contract
Sources: Merger Agreement (K2 Inc)
Agreements, Contracts and Commitments. (a) Except for (i) the Restricted Agreements and (ii) as set forth in Section 2.12(a2.14(a) of the Disclosure Schedule, neither the Company Schedule sets forth all contracts that are material to nor the business or operations Subsidiary is a party to, nor is either bound by any of the Company or which by their terms seek to limit or define those activities in which following (together with the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectivelyRestricted Agreements, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party to nor is it bound by:):
(i) any collective bargaining agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonusemployment, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment contractor or consulting agreement, contract or commitment and any non-compete, confidentiality, Intellectual Property ownership, trade secrets or similar agreement with an employee or individual consultant consultant, contractor, or salesperson or consulting or sales agreement, contract or commitment with a firm or other organizationsalesperson;
(vii) any agreement or plan (other than the Plans), including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, (A) any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the Ancillary Agreements occurrence of any additional subsequent events), except at the election of the Company, or (B) the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(vi) any fidelity or surety bond or completion bond;
(viiiii) any lease of real or personal property having a value individually in excess of $25,00050,000 individually or $100,000 in the aggregate;
(viiiiv) any lease, license, sublease or occupancy right with respect to real property;
(v) any agreement of indemnificationindemnification or guaranty, but excluding agreements of indemnification or guaranty with respect to the infringement of the Intellectual Property rights of third parties or suretyshipfor violations of HIPAA that are contained in the Company’s written agreements with its customers that have been entered into in the ordinary course of business;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xvi) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,00050,000 individually or $100,000 in the aggregate;
(xivii) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties securities or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xiiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to Indebtedness or otherwise the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiiix) any purchase order or contract or other commitment obligating the Company or the Subsidiary to purchase or sell materials, supplies, equipment or services involving in excess of $50,000 individually or $100,000 in the aggregate;
(x) any agreement containing covenants or other obligations granting or containing any current or future commitments regarding exclusive rights, non-competition, non-solicitation, “most favored nations,” restriction on the operation or scope of its businesses or operations or on its right to use or disclose any information in its possession, or similar terms;
(xi) any sales representative, dealer, distribution, marketing, development, joint venture, strategic alliance or partnership agreement, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other contract for use or distribution of the products, technology or services of the Company or the Subsidiary;
(xii) any customer contract involving, or reasonably expected to involve revenues to the Company or the Subsidiary in excess of $50,000 annually or $100,000 in the aggregate;
(xiii) agreement, contract or instrument granting any Person a Lien on any of the assets of the Company or the Subsidiary, in whole or in part;
(xiv) any agreement, contract or instrument with any Shareholder or any Affiliate of any Shareholder;
(xv) any agreement, contract or instrument with any Governmental Entity;
(xvi) any collective bargaining agreement or similar labor agreement;
(xvii) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance or other plan or arrangement for the purchase benefit of raw materials the Company’s or the Subsidiary’s current or former directors, managers, officers, employees and consultant;
(xviii) any Contract with respect to any material Company Intellectual Property, Company Products, or Third Party Intellectual Property, including without limitation, any material in-bound licenses, out-bound licenses and cross licenses, but excluding (i) non-disclosure agreements and non-exclusive out-bound licenses with respect to the provision of services involving $10,000 or moreCompany Products to end-users (in each case, other than purchases pursuant to written agreements that have been entered into in the ordinary course of business;
), and (xivii) any construction contracts;
(xv) any distribution, joint marketing, licensing in-bound licenses and purchase agreements for COTS Software which neither individually nor in the aggregate for the same software program exceeds $25,000 in either one-time or development agreementannual license fee or support/maintenance payments; or
(xvixix) any other agreement, contract or commitment not identified above (A) that involves the payment or could result in payments to or receipt by the Company or the Subsidiary of $25,000 50,000 individually or more or $100,000 in the aggregate and is not cancelable by the Company or the Subsidiary without penalty within thirty (30) daysdays or (B) the loss of which or breach of which would result in a Company Material Adverse Effect.
(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, all as noted in set forth on Section 2.12(b2.14(b) of the Company Disclosure Schedule, each Material Contract is a legal, valid and binding obligation of the Company has not breachedor the Subsidiary, violated as applicable, enforceable against the Company or defaulted underthe Subsidiary, or received notice that it has breachedas applicable, violated or defaulted underand, to the Knowledge of the Company, any of the other party to such Material Contract, in accordance with its terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or (except as enforceability may be bound (any such agreementlimited by bankruptcy, contract or commitmentinsolvency, a “Contract”). Each Contract is moratorium, fraudulent conveyance and other similar laws affecting creditors’ rights generally and by general principles of equity) and in full force and effect. Neither the Company nor the Subsidiary, as applicable, and, to the Knowledge of the Company, no other party to such Material Contract is in material breach or default under any Material Contract, and to the Company’s Knowledge no event has occurred which with notice or lapse of time would constitute such a material breach or default, or permit termination, modification, or acceleration, under such Material Contract. Neither the Company nor the Subsidiary has, and, to the Knowledge of the Company, no other party to such Material Contract has, given written notice rejecting any provision of any Material Contract. Neither the Company nor the Subsidiary is disputing and, to the Knowledge of the Company, no other party to such Material Contract is disputing, any provision of any Material Contract. There are no forbearance programs in effect and is not subject with respect to any default thereunder provision of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)Material Contract.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of Except as contemplated by this Agreement or set forth on Schedule 2.16, neither the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company nor any Subsidiary has, is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreementa party to, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party to nor is it bound by:
(ia) any collective bargaining agreements;
(iib) any agreements employment or arrangements consulting agreement, contract or commitment with any officer, employee, or member of the Company's Board of Directors or the Board of Directors of any Subsidiary, other than those that contain any severance pay are terminable at the will of the Company or post-employment liabilities or obligationsa Subsidiary, as the case may be;
(iiic) any bonus, deferred compensation, pension, profit sharing, severance, or retirement plans or agreements, or any other employee benefit plans or arrangements;
(d) any stock option or stock purchase plan or arrangement (other than the Option Plan), stock appreciation, bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(ive) any employment or consulting agreement, contract or commitment agreement with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with under which a firm or other organizationorganization provides services to the Company or a Subsidiary (other than standard offer letters relating to "at will" employment which create no obligation of the Company or a Subsidiary other than such obligations as may be created under applicable employment laws);
(vf) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(vig) any fidelity or surety bond or completion bond;
(viih) any agreement or group of related agreements for the lease of real or personal property having a value individually in excess of $25,000;
(viiii) any agreement of indemnificationindemnification or guaranty other than as set forth in the Form License, guaranty or suretyshipsubject to such reasonable variations therein that are not individually materially adverse to the Company;
(ixj) any agreement, contract or commitment agreement containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any personperson or entity;
(xk) any agreement, contract or commitment agreement relating to the purchase of materials or capital expenditures or and involving future payments in excess of $25,000;
(xil) any agreement, arrangement, right, contract or commitment agreement relating to the disposition or acquisition of assets, properties assets (other than in the ordinary and usual course of business) or any interest in any business enterprise outside the ordinary course of the Company’s businessenterprise;
(xiim) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by the Company or any Subsidiary or extension of credit, including guaranties credit to the Company or instruments of surety referred to in subparagraph (vi) aboveany Subsidiary;
(xiiin) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or more, agreement concerning confidentiality (other than purchases those entered in the ordinary and usual course of business);
(xivo) any construction contracts;
(xvp) intentionally omitted;
(q) any distributionagreement pursuant to which the Company or a 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;
(r) any sales representative, original equipment manufacturer, value added, remarketer or other agreement for distribution of the products or services of the Company or any Subsidiary, or the products or services of any other person or entity or any dealer, joint marketingmarketing (including any pilot program), licensing or development agreement;
(s) any agreement pursuant to which the Company or any Subsidiary has advanced or loaned any amount to any stockholder of the Company or any Subsidiary or any director, officer, employee, or consultant of the Company or any Subsidiary other than business travel advances in the ordinary and usual course of business, consistent with past practice; or
(xvit) to the extent not reported on the Company Balance Sheet, any other agreement, contract or commitment agreement that involves or could result in payments to or payment by the Company or a Subsidiary of $25,000 or more or which is not cancelable by the Company 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, all as noted in Section 2.12(b) of . Neither the Company Schedule, the Company nor any Subsidiary has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to which it is a party be set forth on any Company Schedule relating to the representations and warranties set forth in Section 2.14 or by which it or its assets or properties are or may be bound on Schedule 2.16 (any such agreement, contract or commitment, a “Contract”"CONTRACT"). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge thereunder by any party obligated to the Company or a Subsidiary, as the case may be, 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 as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”).
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business Except as contemplated by this Agreement or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Scheduleon Schedule 3.16, the Company does not have, is not a party to nor is it bound by:
(i) any collective bargaining agreements;
(iia) any agreements or arrangements with any current employee or consultant that contain contains any severance pay or post-employment liabilities or obligations;
(iiib) 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, pension, profit sharing 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, or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(vf) any agreement or plan (plan, including, without limitation, any stock option plan, stock share appreciation rights plan plan, or stock 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 transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(vig) any fidelity or surety bond or completion bond;
(viih) any agreement, contract, or commitment for the lease of real or personal property having a value individually in excess of $25,000C$5,000;
(viii) any agreement of indemnification, guaranty or suretyship;
(ixi) any agreement, contract contract, or commitment of indemnification or guaranty;
(j) any agreement, contract, or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any personperson or entity;
(xk) any agreement, contract contract, or commitment relating to capital expenditures or and involving future payments in excess of $25,000C$5,000 in the aggregate;
(xil) any agreement, arrangementcontract, right, contract or commitment relating to the disposition or acquisition of assets, properties assets (other than in the ordinary and usual course of business) or any interest in any business enterprise outside the ordinary course of the Company’s businessenterprise;
(xiim) 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, including guaranties or instruments of surety referred credit to in subparagraph (vi) abovethe Company;
(xiiin) any purchase order agreement, contract, or contract for the purchase of raw materials or the provision of services involving $10,000 or more, commitment concerning confidentiality (other than purchases those entered in the ordinary and usual course of business);
(xivo) any construction contractsagreement, 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;
(xvp) any distributionsales 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 marketingmarketing (including any pilot program), licensing or development agreement;
(q) any agreement, contract, or commitment pursuant to which the Company has advanced or loaned any amount to any shareholder of the Company or any director, officer, employee, or consultant of the Company other than business travel advances in the ordinary and usual course of business, consistent with past practice; or
(xvir) any other agreement, contract contract, or commitment that involves or could result in payments to or payment by the Company of $25,000 C$5,000 or more or which is not cancelable by the Company without penalty within thirty (30) 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, all as noted in Section 2.12(b) of the Company Schedule, the . The Company has 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 agreement, contract or commitment required to which it is a party be set forth on any schedule relating to the representations and warranties set forth in Section 3.14 or by which it or its assets or properties are or may be bound on Schedule 3.16 (any such agreement, contract or commitment, a “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 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 thereunder default, of which the Company or any Shareholder has knowledge knowledge, by any party obligated to the Company pursuant thereto. The Following the Closing, the Company has obtainedshall 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 will obtain prior payments that the Company would otherwise be required to pay pursuant to the Effective Timeterms of such Contracts had the transaction contemplated by this Agreement not occurred. No assignment or consent is required from any other party as a result of this Agreement. Without limiting the foregoing, all necessary consents, waivers and approvals upon consummation of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby by this Agreement, each Contract shall continue in full force and by the Ancillary Agreements, including all such consents, approvals effect in accordance with its terms without penalty or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)other adverse consequence.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) As of the date hereof, neither Company Schedule sets forth all contracts that are material to the business or operations nor any of the Company or which by their terms seek to limit or define those activities in which the Company its subsidiaries is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party to nor or is it bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an any officer or director or higher level employee or individual consultant member of Company's Board of Directors, other than those that are terminable by Company or salesperson any of its subsidiaries on no more than thirty (30) days' notice without liability or consulting or sales financial obligation to Company, (ii) any such agreement, contract or commitment with a firm any employee, consultant, shareholder or other organization;
person that will result in any obligation of Company or any of its subsidiaries to make any payments as a result of the transactions contemplated hereby, (viii) any agreement with any employee, consultant or shareholder of Company pursuant to which Company has loaned or is obligated to loan any money thereto or (iv) any agreement or plan arrangement providing for severance or termination pay;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually in excess of $25,000;
(viiic) any agreement of indemnificationindemnification of officers, directors or employees of Company or any guaranty of third party indebtedness or suretyshipof obligations of officers, directors, employees or agents of Company;
(ixd) any agreement, contract or commitment containing any covenant limiting in any respect the freedom right of the Company or any of its subsidiaries to engage in any line of business or to compete with any person;in any
(xe) any agreement, contract or commitment relating to capital expenditures or involving future payments currently in excess of $25,000;
(xi) any agreement, arrangement, right, contract or commitment force relating to the disposition or acquisition of assets, properties by Company or any interest of its subsidiaries after the date of this Agreement of a material amount of assets not in any business enterprise outside the ordinary course of the business or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than Company’s business's subsidiaries;
(xiif) any agreement, contract or commitment containing exclusivity provisions pursuant to which Company has agreed not to purchase the goods (other than local grocery products) or services of, or enter into a commercial relationship with, another person;
(g) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiih) any purchase order settlement agreement relating to any claim or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of businesssuit;
(xivi) any construction contractsreal property lease covering more than 20,000 square feet;
(xvj) any distributionagreement, joint marketingcontract or commitment obligating Company to make any payments based on (i) the number of users accessing any website operated by Company or any of its subsidiaries (whether measured by registrations, licensing click-throughs or development agreementpurchases by such users) or (ii) revenues generated by purchases on any such website; or
(xvik) any other agreement, contract or commitment that involves or could result in payments to or by the remaining obligations of Company of $25,000 1,000,000 or more or individually. Neither Company nor any of its subsidiaries, nor to Company's knowledge any other party to a Company Contract (as defined below), is not cancelable by the Company without penalty within thirty (30) days.
(b) Except for such alleged breaches, violations and defaults, and events that would constitute a in breach, violation or default with the lapse of time, giving of notice, or both, all as noted in Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or and neither Company nor any of its subsidiaries has received written notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreementof the agreements, contract contracts or commitment commitments to which it Company or any of its subsidiaries is a party or by which it or its assets or properties is bound that are or may required to be bound disclosed in the Company Schedules (any such agreement, contract or commitment, a “"COMPANY CONTRACT") in such a manner as would permit any other party to cancel or terminate any such Company Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”aggregate).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Webvan Group Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the The Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party to nor is it bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any material employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(vii) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements hereby, or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyhereby;
(viiii) any fidelity or surety bond or completion bond;
(viiiv) any lease of real or personal property having a value individually in excess of $25,000;
(viii) any agreement of indemnification, guaranty or suretyship;
(ixv) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xvi) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,00010,000 in any individual case, or $25,000 in the aggregate;
(xivii) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s 's business;
(xiiviii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments other than credit for trade payables incurred in the ordinary course of surety referred to in subparagraph (vi) aboveits business;
(xiiiix) any purchase order or contract for the purchase of raw materials or the provision involving in excess of services involving $10,000 in any individual case, or more, other than purchases $50,000 in the ordinary course of businessaggregate;
(xivx) any construction contracts;
(xvxi) any distribution, joint marketing, licensing marketing or development agreement; or
(xvixii) any other agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) days.
(b) Except for such alleged breaches, violations The Company is in compliance with 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 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract contract, covenant, instrument, lease, license or commitment to which it the Company is a party or by which it or its assets or properties are is or may be bound (collectively a "Contract"), nor is Seller aware of any event that would constitute such agreementa breach, contract violation or commitmentdefault with the lapse of time, a “Contract”)giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective TimeClosing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all for such Contracts to remain in effect without modification after the Surviving Corporation (Closing. Following the “Requisite Consents”)Closing, 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 otherwise be required to pay had the transactions contemplated hereby not occurred.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a3.13(a) of the Company Seller Disclosure Schedule, the Company does not haveno Seller has continuing obligations under, is not a party to nor or is it bound by:by any Contract related in any way to the Acquired Business Assets that: Table of Contents
(i) any is a collective bargaining agreements;agreement,
(ii) any agreements or arrangements that contain contains any severance pay or pay, post-employment liabilities or obligations;obligations or “golden parachute” provisions (or similar provisions which provide for payment of consideration upon the completion of the transactions contemplated herein),
(iii) contains any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;,
(iv) any is an employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;,
(v) any is an agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;by this Agreement, except as provided herein,
(vi) any is a fidelity or surety bond or completion bond;,
(vii) any is a lease of real or personal property having a value annual lease payments individually in excess of $25,000;10,000,
(viii) any is an agreement of indemnification, warranty or guaranty or suretyship;other than in the ordinary course of business,
(ix) any agreement, contract or commitment containing contains any covenant limiting the freedom of any Seller or the Company Compass Business to engage in any line of business or to compete with any person;,
(x) any agreement, contract or commitment relating relates to capital expenditures or involving and involves future payments in excess of $25,000;10,000,
(xi) any agreement, arrangement, right, contract or commitment relating relates to the disposition or acquisition of assets, properties material assets or any interest in any business the Compass Business enterprise outside the ordinary course of the Company’s business;,
(xii) any mortgagesis a mortgage, indenturesindenture, loans loan or credit agreementsagreement, security agreements agreement or other agreements agreement or instruments instrument relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;,
(xiii) any purchase order is a distribution, joint marketing or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of business;development agreement,
(xiv) is an agreement, contract or commitment with any construction contracts;customer or vendor which, during the last two fiscal years, accounted, or is expected to account during fiscal year 2002, for more than 10% of Sellers’ consolidated net revenue or 10% of Sellers’ consolidated trade payables, as applicable, or Table of Contents
(xv) any distribution, joint marketing, licensing or development agreement; or
(xvi) any other is an agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 10,000 or more or is not cancelable by the Company without penalty within thirty (30) days.
(b) Except for such alleged breachesAs of the Closing Date, violations (x) each Contract (other than any Contract constituting an Excluded Asset) will be a valid and defaultsbinding obligation of the parties thereto and in full force and effect, and events that would constitute (assuming receipt of any required consent set forth in Section 3.2(c) of the Seller Disclosure Schedule) will continue in full force and effect following the transactions contemplated by this Agreement, in each case without any breach of any terms or conditions thereof or the forfeiture or impairment of any rights thereunder, (y) each Seller will have performed all material obligations required to be performed by it prior to the Closing Date under each Contract (other than any Contract constituting an Excluded Asset) to which it is a breach, violation party and will not be (with or default with without the lapse of time, time or the giving of notice, or both) in breach or default thereunder and (z) each other party to each Contract (other than any Contract constituting an Excluded Asset) will have performed all obligations required to be performed by such party under such assigned Contracts, all as noted and will not be (with or without the lapse of time or the giving of notice, or both) in breach or default thereunder. True and complete copies of each Contract, if written, required to be listed in Section 2.12(b1.2(a)(ii) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment Seller Disclosure Schedule have been provided to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)Purchaser.
Appears in 1 contract
Sources: Asset Purchase Agreement (Somera Communications Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a2.18(a) of the Company Schedule sets forth Disclosure Schedule, lists all contracts that are material to the business or operations of the Company or which by their terms seek following to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party to nor is it or bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson salesperson, or consulting or sales agreement, contract contract, or commitment with a firm or other organizationorganization (other than offer letters, employee invention assignment agreements and option agreements pursuant to the Company’s standard form previously provided to Parent; provided that there are no substantive modifications from such form; and provided, further, in the case of employee invention assignment agreements, that the employee has not excepted any inventions that are related to any Intellectual Property used in connection with Company Products);
(vii) any agreement Contract or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements any subsequent event or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viiii) any fidelity or surety bond or completion bond;
(viiiv) any lease of real or personal property having a value individually in excess of $25,00025,000 individually or $50,000 in the aggregate;
(viii) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xv) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,00025,000 individually or $50,000 in the aggregate;
(xivi) any agreement, arrangement, rightcontract or commitment with customers of the Company that individually accounts for five percent (5%) or more of the Company’s revenues;
(vii) any agreement, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xiiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiiix) any purchase order or contract for the purchase of raw materials or the provision of services involving single source suppliers, custom manufacturers or involving in excess of $10,000 25,000 individually or more$50,000 in the aggregate;
(x) any construction contracts;
(xi) any dealer, distribution, joint marketing or development agreement;
(xii) any sales representative, original equipment manufacturer, value added, remarketer, distributor, reseller, or independent software vendor, or other agreement for distribution of the Company’s products, technology or services by a third party;
(xiii) any Contract of indemnification or any guaranty other than purchases any Contract of indemnification entered into in connection with the sale, license, distribution and development of Intellectual Property and advertising in the ordinary course of business;
(xiv) any construction contractsContract currently in force to provide source code to any third party for any product or technology;
(xv) any distribution, joint marketing, licensing material settlement agreement entered into prior to the date of this Agreement pursuant to which the Company has continuing obligations or development agreement; orrights;
(xvi) any Contract under which the consequences of a default or termination would reasonably be anticipated to have a Material Adverse Effect on the Company;
(xvii) any executory agreement under which the Company has advanced or loaned any amount to any of its directors, officers, and employees;
(xviii) any revenue or profit participation Contract which involves aggregate annual payments of more than $20,000; or
(xix) any other agreement, contract or commitment Contract that involves or could result in payments to or by the Company of $25,000 individually or $50,000 in the aggregate or more or and is not cancelable by the Company without penalty within thirty (30) days.
(b) Except for such alleged breaches, violations and defaults, and events any other Contract that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all as noted in Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation cancelable without penalty within six (the “Requisite Consents”)6) months.
Appears in 1 contract
Sources: Merger Agreement (Google Inc.)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Scheduleon Schedule 2.19, since March 27, 2000, the Company does has not have, is not become a party to nor is it or bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iva) any employment or consulting agreement, contract or commitment with an any officer or director or higher level employee or individual consultant member of the Company's Board of Directors, other than those that are terminable by the Company on no more than thirty (30) days' notice without liability or salesperson or consulting or sales agreement, contract or commitment with a firm or other organizationfinancial obligation to the Company;
(vb) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually in excess of $25,000;
(viiic) any agreement of indemnification, indemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale or suretyshiplicense of software products in the Ordinary Course of Business;
(ixd) any agreement, contract or commitment containing any covenant limiting in any respect the freedom right of the Company to engage in any line of business or to compete with any personperson or granting any exclusive distribution rights;
(xe) any agreement, contract or commitment relating to capital expenditures or involving future payments currently in excess of $25,000;
(xi) any agreement, arrangement, right, contract or commitment force relating to the disposition or acquisition by the Company after the date of assets, properties 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 outside the ordinary course of the Company’s businessenterprise;
(xiif) any dealer, distributor, joint marketing or development agreement currently in force under which the Company has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement pursuant to which the Company has continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by the Company and which may not be canceled without penalty upon notice of ninety (90) days or less;
(g) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to the Company;
(h) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company Product, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company Product, service or technology 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 the Purchaser;
(i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties credit or instruments granting any Lien on any assets or properties of surety referred to in subparagraph (vi) abovethe Company;
(xiiij) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of businesssettlement agreement;
(xiv) any construction contracts;
(xv) any distribution, joint marketing, licensing or development agreement; or
(xvik) any other agreement, contract or commitment that involves has a value of $50,000 or could result in payments more individually;
(l) any agreement (or group of related agreements) for the lease of personal property to or from any person that involves aggregate annual payments of more than $20,000;
(m) any agreement under which the consequences of a default or termination could have a Material Adverse Effect on the Company;
(n) any agreement (or group of related agreements) for the purchase or sale of commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year or involve consideration in excess of $20,000;
(o) any agreement for the purchase of supplies, components, products or services from single source suppliers, custom manufacturers or subcontractors that involves aggregate annual payments of more than $20,000;
(p) any agreement concerning a partnership or joint venture;
(q) any agreement with any Affiliate of the Company;
(r) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of its current or former directors, officers or employees;
(s) any collective bargaining agreement;
(t) any executory agreement under which the Company has advanced or loaned any amount to any of its directors, officers, and employees;
(u) any advertising services, e-commerce or other agreement involving the promotion of products and services of third parties by the Company of $25,000 or more or is not cancelable by Company;
(v) any executory agreement pursuant to which the Company without penalty within thirty (30) days.is obligated to provide maintenance, support or training for its services or products;
(bw) Except for such alleged breachesany agreement, violations and defaultscontract or commitment currently in force relating to the Company's leasing of any personal property;
(x) any revenue or profit participation agreement which involves aggregate annual payments of more than $20,000; and
(y) any license, and events that would constitute agreement or other permission which the Company or any Affiliate of the Company has granted to any third party with respect to any of the Intellectual Property used in Company's business. Neither the Company, nor to the knowledge of the Seller, any other party to a Company Contract (as defined below), is in breach, violation or default with the lapse of timeunder, giving of notice, or both, all as noted in Section 2.12(b) of the Company Schedule, and 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 agreementof the agreements, contract contracts or commitment commitments to which it the Company is a party or by which it or its assets or properties is bound that are or may required to be bound disclosed in a schedule to this Agreement (any such agreement, contract or commitment, a “"Company Contract”). Each Contract is ") in full force and effect and is not subject such a manner as would permit any other party to cancel or terminate any default thereunder of which the such Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtainedContract, or will obtain prior would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”aggregate).
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the The Company does not have, is not a party to nor is it bound by:
(ia) any collective bargaining agreements;
(iib) any agreements employment or arrangements consulting agreement, contract or commitment with any officer, director, employee or member of the Company’s Board of Directors, other than those that contain any severance pay or post-employment liabilities or obligationsare terminable by the Company without liability of financial obligation of the Company;
(iiic) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(ivd) any employment or consulting agreement, contract or commitment agreement with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with under which a firm or other organizationorganization provides services to the Company;
(ve) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, or under which payments are required to be made by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(vif) any fidelity or surety bond or completion bond;
(viig) any lease of real or personal property having a value individually in excess of $25,00010,000;
(viiih) any agreement of indemnificationindemnification or guaranty, guaranty except for indemnification or suretyshipguarantees provided in the ordinary course of business in connection with the sale of the Company’s products as set forth on Schedule 2.15;
(ixi) any agreement, contract or commitment containing any covenant limiting in any respect the freedom right of the Company to engage in any line of business or to compete with any personperson or granting any exclusive distribution rights;
(xj) any agreement, contract or commitment agreement relating to capital expenditures or and involving future payments in excess of $25,000;
(xik) any agreement, arrangement, right, contract or commitment currently in force relating to the disposition or acquisition by Company after the date of assets, properties or any interest this Agreement of a material amount of assets not in any business enterprise outside the ordinary course of the Company’s businessbusiness or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiil) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph clause (vih) abovehereof;
(xiiim) any purchase order or contract for involving the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of business;
(xiv) any construction contracts;
(xv) any distribution, joint marketing, licensing or development agreement; or
(xvi) any other agreement, contract or commitment that involves or could result in payments to or expenditure by the Company of $25,000 or more for the Company’s products or $25,000 or more or otherwise;
(n) any construction contracts;
(o) any dealer, distribution, joint marketing (including any pilot program), 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 agreement to which Company is a party with respect to any Technology or Intellectual Property Rights;
(t) any settlement agreement entered into since the Company’s initial incorporation; or
(u) any other agreement that involves $25,000 or more or is not cancelable by the Company 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 as noted in Section 2.12(b) of the Company ScheduleSchedule 2.16(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 agreement, contract or commitment required to which it is a party be set forth on Schedule 2.16(a), Schedule 2.14(m) or by which it or its assets or properties are or may be bound Schedule 2.14(n) (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.16(b), is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”).
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except for this Agreement, the Related Agreements, the Contracts specifically identified on Section 2.12(a3.12(a) of the Company Disclosure Schedule sets forth all contracts that are material to the business or operations (with each of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation such Contracts specifically identified under subsection(s) of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in such Section 2.12(a3.12(a) of the Company Schedule, Disclosure Schedule that correspond to the Subsection or Subsections of this Section 3.12(a)) and purchase orders entered into by the Company does not haveor any of its Subsidiaries in the Ordinary Course of Business, none of the Company nor any of its Subsidiaries is not a party to nor is it or bound byby any of the following Contracts:
(i) (A) each employment agreement or offer letter with any employee, or any consulting or independent contractor agreement (other than any consulting or independent contractor agreement for legal or accounting services), in each case, that is not immediately terminable at-will by the Company without advance notice, severance, or other cost or Liability; (B) any Contract with any labor union or any collective bargaining agreementsagreement or similar Contract with its Employees; (C) any separation agreement or settlement agreement with any current or former employee, consultant, advisor, agency worker, independent contractor or director, under which the Company or any of its Subsidiaries has any current actual or potential Liability, as well as any settlement agreement, consent decree, or other similar agreement with any Governmental Entity relating to any current or former employee, consultant, advisor, agency worker, independent contractor or director; or (D) each Contract or other agreement that provides for any retention bonus, severance payment, termination payment, change in control bonus, equity vesting acceleration, or any other similar benefits that will be payable or provided to any Employee, consultant, advisor, agency worker, independent contractor or director as a result of the Transaction;
(ii) any agreements Contract or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonusplan, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(v) any agreement or plan (including, including any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will shall be increased, or the vesting of benefits of which will shall be accelerated or may be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements Transactions or the value of any of the benefits of which will shall be calculated on the basis of any of the transactions contemplated hereby or therebyTransactions;
(viiii) any fidelity or surety bond or completion bond;
(vii) Contract relating to capital expenditures and involving future payments in any lease of real or personal property having a value individually amount in excess of $25,000500,000 individually or $1,000,000 in the aggregate, in each case in any fiscal year;
(viiiiv) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment relating to capital expenditures or involving future payments in excess of $25,000;
(xi) any agreement, arrangement, right, contract or commitment Contract relating to the disposition or acquisition of assets, properties any material assets or any interest in any business enterprise outside the ordinary course Ordinary Course of the Company’s businessBusiness;
(xiiv) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit or other Indebtedness, including guaranties other than advancements, payments, or instruments reimbursements of surety referred expenses to any officer, director, manager or employee of any Acquired Company incurred in subparagraph the Ordinary Course of Business;
(vi) aboveany Contract for the purchase of tangible items of equipment or related services in any amount in excess of $500,000 individually or $1,000,000 in the aggregate, in each case in any fiscal year;
(vii) the Lease Agreements;
(viii) any Inbound License;
(ix) any Outbound License;
(x) any Contract with a Top Vendor;
(xi) any Contract with a Top Customer;
(xii) any confidentiality and non-disclosure agreements (whether the Company or any of its Subsidiaries is the beneficiary or the obligated party thereunder), other than (A) those related to commercial transactions in the Ordinary Course of Business or (B) those related to any acquisition, sale or similar transaction (whether actual or potential) involving the Company or any of its Subsidiaries;
(xiii) any purchase order Contract providing for “offshore” or contract outsourced the development of any material items of Technology by, for or on behalf of the purchase Company or any of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of businessits Subsidiaries;
(xiv) any construction contractsContract required to be disclosed on Section 3.9 of the Company Disclosure Schedule;
(xv) any distributionContract with U.S. federal, joint marketingstate, licensing city, county, parish, municipal or development agreement; orother Governmental Entities;
(xvi) (A) any management service, partnership or joint venture Contract, (B) any Contract that involves a sharing of profits with other Persons and (C) any Contract that involves the payment of royalties to any other agreementPerson;
(xvii) any agency, contract dealer, distribution, sales representative, remarketer, reseller, or commitment other Contract for the distribution of Company Products (other than agreements with resellers, agents, dealers, sales representatives, remarketers, distributors and channel partners entered into in the Ordinary Course of Business and made available to Buyer);
(xviii) any Contract pursuant to which the Company or any of its Subsidiaries is bound to or has committed to provide any product or service to any third party on a most favored nation basis or similar terms;
(xix) any Contract granting any license or other rights to or from the Company or any of its Subsidiaries with respect to Protected Information, other than grants to service providers to use such Protected Information in connection with the provision of services to the Company or any of its Subsidiaries;
(xx) any standstill or similar agreement containing provisions prohibiting a third party from purchasing Equity Interests of the Company or any of its Subsidiaries or assets of the Company or any of its Subsidiaries;
(xxi) any Contract pursuant to which the Company or any of its Subsidiaries has acquired a business or entity, or a material portion of the assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets, exclusive license or otherwise, or any Contract pursuant to which it has any material ownership interest in any other Person;
(xxii) any agreement of indemnification with officers, directors or managers of the Company or any of its Subsidiaries, other than those set forth in the Charter Documents of the Company and its Subsidiaries;
(xxiii) any Contract or other arrangement to settle any Legal Proceeding or to settle any threatened Legal Proceeding that involves any payments in excess of $250,000;
(xxiv) any other Contract that involves payments by or could result in payments to or by the Company or any of its Subsidiaries of $25,000 1,000,000 or more or in any fiscal year, and is not cancelable by the Company without penalty within thirty ninety (3090) days.
(b) Except for such alleged breaches, violations The Company has made available correct and defaults, and events that would constitute a breach, violation or default with the lapse complete copies of time, giving of notice, or both, all as noted in each Contract set forth on Section 2.12(b3.12(a) of the Company Disclosure Schedule. For the purposes of this Agreement, each of the Contracts referenced in Sections 3.9 and 3.12(a) of the Company Disclosure Schedule shall each be referred to herein as a “Material Contract” and collectively as the “Material Contracts.”
(c) Each of the Company and its Subsidiaries has performed in all material respects all of the obligations required to be performed by it and is entitled to all benefits under, and is not alleged to be in material default in respect of, any Material Contract (other than any Material Contract set forth in Section 3.5 of the Company Disclosure Schedule, for which the applicable notice, waiver or consent is not given or received prior to the Closing). Each of the Material Contracts is (other than any Material Contract set forth in Section 3.5 of the Company has Disclosure Schedule, for which the applicable notice, waiver or consent is not breached, violated or defaulted under, given or received notice that it has breachedprior to the Closing) valid, violated or defaulted under, any of binding and enforceable against the terms or conditions of any agreement, contract or commitment Company and/or its Subsidiaries (to which it the extent such entity is a party or by which it or its assets or properties are or may be bound (any to such agreementMaterial Contract), contract or commitment, a “Contract”). Each Contract and is in full force and effect effect, subject only to the effect, if any, of applicable bankruptcy, insolvency, reorganization, moratorium and is not subject to any other similar Laws affecting the rights of creditors generally and rules of Law governing specific performance, injunctive relief and other equitable remedies. There exists no default thereunder or event of which the Company has knowledge by any party obligated default or event, occurrence, condition or act, with respect to the Company pursuant theretoor any of its Subsidiaries, or to the Knowledge of the Company, with respect to any other contracting party, that, with the giving of notice, the lapse of time or the happening of any other event or condition, would reasonably be expected to
(i) become a material default or material event of default under any Material Contract (other than any Material Contract set forth in Section 3.5 of the Company Disclosure Schedule, for which the applicable notice, waiver or consent is not given or received prior to the Closing) or (ii) give any third party (A) the right to declare a material default or exercise any material remedy under any Material Contract (other than any Material Contract set forth in Section 3.5 of the Company Disclosure Schedule, for which the applicable notice, waiver or consent is not given or received prior to the Closing), (B) the right to a material rebate, chargeback, refund, credit, penalty or change in delivery schedule under any Material Contract (other than any Material Contract set forth in Section 3.5 of the Company Disclosure Schedule, for which the applicable notice, waiver or consent is not given or received prior to the Closing), (C) the right to accelerate the maturity or performance of any material obligation of the Company or any of its Subsidiaries under any Material Contract (other than any Material Contract set forth in Section 3.5 of the Company Disclosure Schedule, for which the applicable notice, waiver or consent is not given or received prior to the Closing), or (D) the right to cancel, terminate or modify any Material Contract (other than any Material Contract set forth in Section 3.5 of the Company Disclosure Schedule, for which the applicable notice, waiver or consent is not given or received prior to the Closing). None of the Company nor any of its Subsidiaries has received any written, or to the Knowledge of the Company, oral notice or other communication regarding any actual or possible violation or breach of, default under, or intention to cancel or modify any Material Contract. The Company has obtainedheretofore made available to Buyer or its Representatives (1) correct and complete copies of each written Material Contract and (2) summaries of each oral Material Contract, or will obtain prior to the Effective Timetogether with any and all material amendments and supplements thereto and “side letters” and similar documentation relating thereto, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)if any.
Appears in 1 contract
Sources: Merger Agreement (Compass Group Diversified Holdings LLC)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) 2.16 of the Company Schedule, Disclosure Schedule (specifying the appropriate paragraph):
(a) Neither the Company does not have, nor any of its Subsidiaries is not a party to to, nor is it bound by:
(i) any collective bargaining agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonusemployment, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment contractor or consulting agreement, contract or commitment with an employee or individual consultant consultant, contractor, or salesperson salesperson, any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any employee, or any contractor, consulting or sales agreement, contract contract, or commitment with a firm or other organizationorganization except (1) on the Company’s standard form of offer letter or (2) as otherwise may be required by applicable law;
(vii) any agreement or plan (includingplan, including any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viiii) any fidelity or surety bond or completion bond;
(viiiv) any lease of real or personal property having a value individually in excess of $25,00020,000 individually or $50,000 in the aggregate;
(viiiv) any agreement of indemnificationindemnification or guaranty except for the warranties and indemnities (a) contained in those contracts and agreements set forth in Section 2.16(a)(v) of the Disclosure Schedule (other than non-exclusive licenses granted in connection with the sale of Company products or related support and maintenance agreements that have been entered into in the ordinary course of business consistent with past practices that do not materially differ in substance from the Company’s standard forms of agreement including attachments (copies of which have been provided to Parent)), guaranty or suretyshipand (b) warranties implied by law;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xvi) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,00020,000 individually or $50,000 in the aggregate;
(xivii) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xiiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiiix) any purchase order or contract for the purchase of raw materials involving in excess of $20,000 individually or the provision of services involving $10,000 or more, other than purchases 50,000 in the ordinary course of businessaggregate;
(xivx) any construction contracts;
(xvxi) any dealer, distribution, joint marketing, licensing strategic alliance, affiliate or development agreement (other than non-exclusive licenses granted in connection with the sale of Company products or related support and maintenance agreements that have been entered into in the ordinary course of business that do not materially differ in substance from the Company’s standard forms agreement including attachments (copies of which have been provided to Parent));
(xii) any agreement, contract or commitment to alter the Company’s interest in any Subsidiary, corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(xiii) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for use or distribution of the products, technology or services of the Company or any of its Subsidiaries (other than non-exclusive licenses granted in connection with the sale of Company products or related support and maintenance agreements that have been entered into in the ordinary course of business that do not materially differ in substance from the Company’s standard forms agreement including attachments (copies of which have been provided to Parent); or
(xvixiv) any other agreement, contract or commitment that involves $20,000 individually or could result $50,000 in payments to or by the Company of $25,000 aggregate or more or and is not cancelable by the Company without penalty within thirty (30) 30 days.
(b) Except for such alleged breaches, violations Each Material Contract to which the Company or any of its Subsidiaries is a party or any of their respective properties or assets (whether tangible or intangible) is subject is a valid 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 2.12(b) binding agreement of the Company Scheduleor its Subsidiaries, as the case may be, enforceable against each of the parties thereto in accordance with its terms, and is in full force and effect with respect to the Company has or the applicable Subsidiary and, to the Knowledge of the Company, any other party thereto. The Company and each of its Subsidiaries are in compliance with and have not breached, violated or defaulted under, or received notice that it has they have breached, violated or defaulted under, any of the terms or conditions of any agreementsuch Material Contract, contract or commitment nor to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder the Knowledge of which the Company has knowledge by is any party obligated to the Company or any of its Subsidiaries pursuant theretoto any such Contract subject to any breach, violation or default thereunder, nor does the Company have Knowledge of any event that with the lapse of time, giving of notice or both would constitute such a breach, violation or default by the Company, its Subsidiaries or any such other party. True and complete copies of each Material Contract disclosed in the Disclosure Schedule or required to be disclosed pursuant to this Section 2.16 (each a “Material Contract” and collectively, the “Material Contracts”) have been delivered to Parent.
(c) The Company has obtained, or will obtain and each of its Subsidiaries have fulfilled all material obligations required pursuant to each Material Contract to have been performed by the Company prior to the Effective Timedate hereof, and, without giving effect to the Merger, the Company will fulfill, when due, all necessary consents, waivers and approvals of parties its obligations under the Material Contracts that remain to any Contract as are required in connection with be performed after the Merger and date hereof.
(d) All outstanding indebtedness of the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals Company or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)its Subsidiaries may be prepaid without penalty.
Appears in 1 contract
Sources: Merger Agreement (Harmonic Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) 2.17 of the Company Disclosure Schedule, the Company does not have, is not a party to nor is it or bound by:
(i) any collective bargaining agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iiia) any bonus, deferred compensation, severance, incentive compensation, pension, profit profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(ivb) any employment or consulting agreement, contract or commitment with an employee any officer or individual consultant or salesperson or consulting or sales agreementdirector level employee, contract or commitment with a firm or other organizationnot terminable by Company on thirty (30) days notice without liability, except to the extent general principles of wrongful termination may limit Company’s ability to terminate employees at will;
(vc) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually in excess of $25,000;
(viiid) any agreement of indemnificationindemnification or guaranty not entered into in the ordinary course of business, guaranty including any indemnification agreements between Company and any of its officers or suretyshipdirectors;
(ixe) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xf) any license, agreement, contract or commitment relating to any Material Company IP Right;
(g) any agreement, contract or commitment relating to capital expenditures or and involving future payments obligations in excess of $25,00050,000 and not cancelable without penalty;
(xih) any agreement, arrangement, right, contract or commitment currently in force relating to the disposition or acquisition of assets, properties or any interest assets not in any business enterprise outside the ordinary course of the Company’s businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiij) any purchase order joint marketing or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of businessdevelopment agreement;
(xivk) any construction contracts;
distribution agreement (xv) identifying any distribution, joint marketing, licensing or development agreementthat contain exclusivity provisions); or
(xvil) any other agreement, contract or commitment that involves (excluding real and personal property leases) which involve an annual payment by Company under any such agreement, contract or could result in payments to or by the Company commitment of $25,000 50,000 or more or in the aggregate and is not cancelable by the Company 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, all as noted in Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”).
Appears in 1 contract
Sources: Merger Agreement (Vaxgen Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a2.15(a) of the Company ScheduleDisclosure Schedule (specifying the appropriate subsection of this Section 2.15(a)), neither the Company does not have, nor any Company Subsidiary is not a party to nor is it or bound by, nor does the Company nor any Company Subsidiary have any continuing obligations under:
(i) any collective bargaining agreementsContract to grant any severance or termination pay (in cash or otherwise) to any Employee or Consultant in excess of $100,000;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm plan or other organization;
(v) any agreement or plan (includingContract, including any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Transactions or any Related Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyTransactions;
(viiii) any fidelity collective bargaining, union or surety bond works council agreement or completion bondany other Contract (each a “Labor Contract”) with a union, trade union, works counsel, or any other labor-relations entity (each a “Labor Entity”);
(viiiv) any Manufacturing or supply agreements (and associated quality agreements), sponsored research agreements, collaboration agreements, grant agreements, pharmacovigilance agreements, clinical study agreements, medical information agreements, any agreements with a contract research organization or other provider of clinical trial or related services (excluding non-disclosure agreements with any such contract research organization or other provider of clinical trial or related services), or any other agreement related to research, studies and tests conducted by or on behalf of the Company or its Affiliates;
(v) any lease of real or personal property having a value individually in excess of $25,000;
(viii) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment relating to capital expenditures or involving future requiring annual payments in excess of $25,000;
(xivi) any agreementContract that imposes surety, arrangement, right, contract guaranty or commitment indemnification obligations on the Company or any Company Subsidiary;
(vii) any Contract relating to capital expenditures and involving future payments in excess of $75,000 individually or $200,000 in the aggregate;
(viii) any Contract relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of business consistent with past practice;
(ix) any Contract under which the Company’s businessor any Company Subsidiary’s obligations continue for a period longer than twelve (12) months and is not cancelable without penalty upon notice of thirty (30) days or less;
(xiix) 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;
(xi) any purchase order or Contract for the purchase of materials involving in excess of $75,000 individually or $200,000 in the aggregate;
(xii) any reseller, including guaranties referral, advertising, agency, dealer, distributor, joint marketing, joint venture, partnership or instruments of surety referred to in subparagraph (vi) abovestrategic alliance Contract;
(xiii) any purchase order Contract, including any Contract to exclusively negotiate with, or contract for the purchase grant right or right of raw materials first refusal or the provision of services involving $10,000 or morefirst offer to, any Person (other than purchases in Parent) related to the ordinary course acquisition of businessthe Company or any Company Subsidiary;
(xiv) any construction contractsContract pursuant to which the Company or any Company Subsidiary has undertaken to, or pursuant to which the receipt of revenue by the Company or any Company Subsidiary is contingent upon, deliver 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;
(xv) any distributionContract between the Company or any Company Subsidiary and a customer or partner of the Company or such Company Subsidiary pursuant to which paid fees must be refunded, joint marketing, licensing payment of fees is contingent upon or development agreement; oran 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 or such Company Subsidiary is not achieved;
(xvi) any Contract (a) limiting the freedom of the Company or any Company Subsidiary to engage or participate, or compete with any other agreementPerson, contract in any line of business, market or commitment geographic area, or to make use of any Company Intellectual Property, or (b) under which the Company or such Company Subsidiary grants most favored nation pricing, exclusive sales, distribution, marketing or other exclusive rights, rights of refusal, rights of first negotiation or similar rights or terms to any Person;
(xvii) any Contract providing for the development of any Company Technology, excluding any Contract between the Company or a Company Subsidiary and an Employee or Consultant entered into on the Company’s or such Company Subsidiary’s standard form of employment or consulting agreement that has been made available to Parent;
(xviii) any other Contract, including any service, operating or management agreement or arrangement with respect to any Leased Real Property, that involves $75,000 individually or could result $200,000 in payments to or by the Company of $25,000 aggregate or more or and is not cancelable by the Company without penalty within thirty (30) days;
(xix) any Government Contract or Government Grant; or
(xx) any Contract with any Material Customer or Material Supplier.
(b) Except for such alleged breachesTrue, violations correct and defaultscomplete copies of each Contract disclosed in the Disclosure Schedule or required to be disclosed pursuant to this Section 2.15 (each, and events that would constitute a breachtogether with any Contract scheduled, violation or default required to be scheduled, in connection with the lapse of timerepresentations set forth in Sections 2.12, giving of notice2.13, or both2.14, all as noted in Section 2.12(b2.16, 2.21, a “Material Contract” and collectively, the “Material Contracts”) have been made available to Parent. Each Material Contract is a valid and binding agreement of the Company Scheduleor such Company Subsidiary enforceable against each of the parties thereto in accordance with its terms, and is in full force and effect with respect to the Company or such Company Subsidiary and, to the Knowledge of the Company, the other parties thereto. The Company and each Company Subsidiary is in compliance with, and has not materially breached, violated or defaulted under, or received written notice that it a counterparty asserts that the Company or such Company Subsidiary has materially breached, violated or defaulted under, any of the terms or conditions of any agreementsuch Contract, contract or commitment nor, to which it the Knowledge of the Company, is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company or any Company Subsidiary pursuant thereto. The Company has obtainedto any such Contract subject to any material breach, violation or will obtain prior default thereunder, nor, to the Effective TimeKnowledge of the Company, all necessary consents, waivers and approvals of parties to has any Contract as are required in connection event occurred that with the Merger and the other transactions contemplated hereby and lapse of time, giving of notice or both would constitute such a material breach, violation or default by the Ancillary Agreements, including all Company or such consents, approvals Company Subsidiary or waivers necessary to validly transfer and assign all any such Contracts to the Surviving Corporation (the “Requisite Consents”)other party.
Appears in 1 contract
Sources: Merger Agreement (Bioventus Inc.)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities specified in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby clauses (i) through (xvii) below (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party to nor is it bound by:
(i) any collective bargaining agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligationspay;
(iii) any bonus, deferred compensation, pension, profit sharing pension or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(v) any agreement or plan (including, any stock option plan, stock appreciation rights plan or stock purchase plan) any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;
(vi) any fidelity or surety bond or completion performance bond;
(vii) any lease of real or personal property having a value individually involving future payments in excess of $25,00040,000 not cancelable by the Company without penalty of less than $40,000;
(viii) any agreement of indemnification, guaranty or suretyshipsuretyship in an amount greater than $40,000;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment relating to capital expenditures or involving future payments in excess of $25,00040,000;
(xi) any agreement, arrangement, right, contract or commitment relating to the future disposition or acquisition of assets, properties or any interest in any business enterprise outside the ordinary course of the Company’s businessenterprise;
(xii) any mortgagesmortgage, indenturesindenture, loans loan or credit agreementsagreement, security agreements agreement or other agreements agreement or instruments instrument relating to the borrowing of money or extension of credit, including guaranties or instruments other than Company credit cards with a credit limit of surety referred to in subparagraph (vi) aboveless than $10,000;
(xiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of business;
(xiv) any construction contracts;
(xv) any distribution, joint marketing, licensing or development agreement; or;
(xvi) any insurance policies;
(xvii) any other agreement, contract or commitment that involves or could result in aggregate payments to or by the Company of $25,000 or more or and is not cancelable by the Company 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, all as noted in Section 2.12(b) of the Company Schedule, the The Company has not materially breached, violated or defaulted under, or received notice that it has materially breached, violated or defaulted under, any of the terms or conditions of any agreementMaterial Contract. Except as set forth in Section 2.12(b) of the Company Schedule, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each each Material Contract is in full force and effect and is not subject to any material breach, default or violation thereunder of which by the Company has knowledge or, to the Shareholders’ Knowledge, by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective TimeClosing Date, all necessary consents, waivers and approvals of parties to any Contract Material Contracts as are required to obtain in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation Agreements (the “Requisite Consents”).
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(aCompany Schedule 3.19 sets forth each of the following Contracts (each such Contract listed or that should be listed on Schedule 3.19, a “Material Contract”) to which any member of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company Group is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party to nor is it bound byor by which they or their properties or assets are bound:
(i) any collective bargaining agreementsContract;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligationsthe Carena Earn Out Termination Agreement;
(iii) any bonusEmployment Agreement which involves base compensation in excess of $150,000;
(iv) any bonus or any other incentive compensation, deferred compensation, severance, salary continuation, pension, profit sharing or retirement plansplan, or any other employee benefit plans plan or arrangements;
(iv) any employment or consulting agreementarrangement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organizationthat is not listed on Company Schedule 3.28(a);
(v) any agreement commission and/or sales Contract with an Employee, individual consultant or plan salesperson, or under which a firm or other organization provides commission or sales-based services to any member of the Company Group;
(includingvi) any Contract or plan, including any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of the Merger or any of the other transactions contemplated by this Agreement or and the Ancillary Related Agreements or the value of any of the benefits of which will be calculated on the basis of the Merger or any of the other transactions contemplated hereby by this Agreement or therebythe Related Agreements;
(vivii) any fidelity or surety bond or completion bond;
(viiviii) any lease of real or tangible personal property having a value individually in excess of $25,000;
(viii) any agreement of indemnification, guaranty or suretyship250,000;
(ix) any agreement, contract Contract of indemnification or commitment guaranty to any third party (other than agreements for the sale or resale of Company Products entered into in the ordinary course of business);
(x) any Contract containing any covenant limiting the freedom of any member of the Company Group to engage in any line of business or in any geographic territory or to compete with any personPerson, or which grants to any Person any exclusivity to any geographic territory, any customer, or any product or service;
(xxi) any agreement, contract or commitment Contract relating to capital expenditures or and involving future payments in excess of $25,000250,000 in any individual case or $500,000 in the aggregate;
(xixii) any agreementContract entered into since December 31, arrangement2014, right, contract or commitment relating to the acquisition or disposition or acquisition of assets, properties a material amount of assets of a business or any equity or ownership interest in any business enterprise outside the ordinary course of any member of the CompanyCompany Group’s businessBusiness or any Contract relating to the acquisition of a material amount of assets of a business of or any equity or ownership interest in any business enterprise;
(xiixiii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments Contract relating to the borrowing of money or the extension of credit, including guaranties credit or instruments evidencing $500,000 or more of surety referred to in subparagraph (vi) above;
(xiii) any purchase order Debt or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of businesssecuring such Debt;
(xiv) any construction contractsunpaid or unperformed purchase order or other similar Contract (including for services) involving in excess of $150,000 in any individual case or $500,000 or more in the aggregate;
(xv) any dealer, distribution, joint marketingmarketing (including any pilot program), licensing development, content provider, destination site or development agreement; ormerchant Contract;
(xvi) any Contracts that provide for source code escrow arrangements;
(xvii) any sales representative, original equipment manufacturer, value added re-seller, re-marketer or other agreementContract for distribution of any member of the Company Group Products or Services, contract or commitment the products or services of any other Person;
(xviii) any Contract pursuant to which any member of the Company Group has advanced or loaned any amount to any Company Equityholder or any Employee, consultant or independent contractor thereof or any of its Subsidiaries or the Practices or Practitioners, other than business travel advances in the ordinary course of business consistent with past practice;
(xix) any joint venture, partnership, strategic alliance or other Contract involving the sharing of profits, losses, costs or liabilities with any Person or any development, data-sharing, marketing, resale, distribution or similar arrangement relating to any product or service;
(xx) any Contract pursuant to which any member of the Company Group agreed to provide “most favored nation” pricing or other similar terms and conditions to any Person with respect to any member of the Company Group’s sale, distribution, license, or support of any Company Products or Services or any of its Subsidiaries;
(xxi) any Contract obligating any member of the Company Group to provide development, maintenance, support or other professional services on a fixed price, maximum fee, cap, milestone or other basis that provides for payment other than on an unrestricted “time and materials” basis; or
(xxii) any other Contract that involves or could result in payments to or by the Company of $25,000 150,000 or more or and is not cancelable by the Company without penalty within upon thirty (30) days’ notice or less.
(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, all as noted in Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”).
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in on Section 2.12(a2.15(a) of the Company Disclosure Schedule, neither the Company does not have, nor any of the Company Subsidiaries is not a party to nor to, or is it bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson (other than “at will” employment agreements entered into in the Ordinary Course of Business that do not provide for severance payments, a notice period upon termination, change of control payments or consulting acceleration of obligations (including vesting of options or sales agreement, contract or commitment with a firm or other organizationotherwise) involving future payments in excess of $[*];
(vii) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase planplan (A) relating to the sale, issuance, grant, exercise, award, purchase or redemption of any shares of Company Capital Stock or any other securities of the Company or any of the Company Subsidiaries or any options, warrants, convertible notes or other rights to purchase or otherwise acquire any such shares of stock, other securities or options, warrants, or other rights therefor, or (B) any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viiii) any fidelity or surety bond or completion bond;; * Confidential treatment requested.
(viiiv) any lease of real or personal property having a value individually in excess of $25,000[*] individually or $[*] in the aggregate;
(viiiv) any agreement of indemnification, guaranty or suretyshipguaranty;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xvi) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,000[*] individually or $[*] in the aggregate;
(xivii) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xiiviii) any material mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiiix) any purchase order or contract for the purchase of raw materials involving payments in excess of $[*] individually or the provision of services involving $10,000 or more, other than purchases [*] in the ordinary course aggregate;
(x) any partnership, dealer, distribution, joint marketing, joint venture, joint development, strategic alliance, affiliate, development agreement or similar agreement, including, without limitation, any Contract pursuant to which the Company or any Company Subsidiary grants or has granted to any person the right to manufacture, develop or market the Product or any product containing levofloxacin compound;
(xi) 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 the Company Subsidiaries involving payments in excess of $[*] individually or $[*] in the aggregate;
(xii) any Contract limiting in any respect the right of the Company or any of the Company 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 Proprietary Rights, 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 the Company Subsidiaries to sell, distribute or manufacture the Product;
(xiii) any Contract with any clinical research organization providing clinical trial services for any clinical trial for any product containing inhaled levofloxacin compound;
(xiv) any construction contracts;Contract that would require the consent of any Person in order to consummate any of the transactions contemplated by this Agreement, the Option Agreement, the Development Agreement or the License Agreement; * Confidential treatment requested.
(xv) any distributionContract required to be listed in Section 2.12 of the Disclosure Schedule;
(xvi) any Contract (other than Contracts evidencing Company Options or Company Warrants) (A) relating to the acquisition, joint marketingissuance, licensing voting, registration, sale or development transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or similar right with respect to any securities, or (C) providing the Company or any Company Subsidiary with any right of first refusal with respect to, or right to repurchase, redeem, put or call, any securities;
(xvii) any Contract relating to the creation of any Encumbrance (other than Permitted Encumbrances) with respect to any material asset of the Company or any Company Subsidiary;
(xviii) any Contract providing for the sharing of revenues, profits, losses, costs, assets or liabilities;
(xix) any Contract (A) containing “standstill” or similar provisions relating to transactions involving the acquisition, disposition or other transfer of assets or securities of the Company or any Company Subsidiary, or (B) providing any right of first negotiation, right of first refusal or similar right to any Person;
(xx) any material Contract related to the Product not already required to be listed in Section 2.15(a);
(xxi) 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 business;
(xxii) any settlement or litigation “standstill” agreement; or
(xvixxiii) any other agreementContract, contract if a breach of such Contract or commitment that involves the termination of such Contract would reasonably be expected to have or could result in payments to or by the Company of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) daysa Material Adverse Effect.
(b) Except for such alleged breachesTrue and complete copies of each Contract disclosed in the Disclosure Schedule or required to be disclosed pursuant to this Section 2.15 (each a “Material Contract” and collectively, violations and defaults, and events that would constitute a breach, violation the “Material Contracts”) have been made available to Acquiror. Each Material Contract to which the Company or default with the lapse of time, giving of notice, or both, all as noted in Section 2.12(b) any of the Company Schedule, Subsidiaries is a party or any of its properties or assets (whether tangible or intangible) is subject is a legally valid and binding agreement of the Company has or its Subsidiary, enforceable against the Company or the Company Subsidiaries in accordance with its terms, and is in full force and effect with respect to the Company or its Subsidiary, subject to (i) Laws of general application relating to bankruptcy, insolvency, moratorium or similar Laws affecting creditors’ rights and the relief of debtors and (ii) rules of Law and general principles of equity governing specific performance, injunctive relief and other equitable remedies (regardless of whether such enforceability is considered in a proceeding in equity or at law). The Company and the Company Subsidiaries are in material * Confidential treatment requested. compliance with and have not materially breached, violated or defaulted under, or received written notice or notice via electronic mail that it has materially breached, violated or defaulted under, any of the terms or conditions of any agreementsuch Material Contract. To the Knowledge of the Company, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any no party obligated to the Company or any Company Subsidiary pursuant thereto. The Company to any such Material Contract has obtainedbreached, violated or defaulted under such Material Contract, or will obtain prior 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. There is no event or circumstance that with notice or lapse of time, or both, would be reasonably likely to (i) constitute a default by the Company or any Company Subsidiary or (to the Effective Timeknowledge of the Company) any other party under any Material Contract, all necessary consents(ii) result in a material violation or breach of any of the provisions of any Material Contract by the Company or any Company Subsidiary or (to the knowledge of the Company) any other party, waivers (iii) give the Company or any Company Subsidiary or (to the knowledge of the Company) any other Person the right to declare a default or exercise any remedy under any Material Contract, (iv) give the Company or any Company Subsidiary or (to the knowledge of the Company) any other Person the right to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Material Contract, (v) give the Company or any Company Subsidiary or (to the knowledge of the Company) any other Person the right to accelerate the maturity or performance of any Material Contract, or (vi) give the Company or any Company Subsidiary or (to the knowledge of the Company) any other Person the right to cancel, terminate or modify any Material Contract.
(c) Except as set forth in Section 2.15(c) to the Disclosure Schedule, each Contract with a clinical research organization providing clinical trial services is terminable and approvals may be discontinued by the Company at will (upon delivery of parties to any Contract as are required notice of not more than ninety (90) calendar days) without penalty or cost (other than reimbursement for previously incurred or committed expenses) in connection with the Merger and the other transactions contemplated hereby and termination by the Ancillary AgreementsCompany of the applicable research program to which such Contract relates or the preclinical or clinical development program to which such Contract relates. Each of the Contracts entered into to establish a clinical trial at any clinical site conforms in form substantially with the standard form used by the Company as of the date of such Contract. To the knowledge of the Company, including all such consents, approvals there has not been any Material Adverse Effect to any clinical trial conducted by the Company or waivers necessary to validly transfer and assign all any Company Subsidiary resulting in whole or in part from the breach of any such Contracts by the clinical site or sponsor participating therein under any such Contracts.
(d) Section 2.15(d) to the Surviving Corporation Disclosure Schedule sets forth all Company Contracts that relate to the Company’s license and development rights to the Product (the “Requisite ConsentsProduct Contracts”), and all such Product Contracts are valid, binding and enforceable (except as to the effect, if any, of (i) applicable bankruptcy and other similar laws affecting the rights of creditors generally and (ii) Legal Requirements governing specific performance, injunctive relief and other equitable remedies) in accordance with their terms against the Company or any Company Subsidiary, and, to the knowledge of the Company, each other party thereto, and are in full force and effect; neither the Company nor any Company Subsidiary has received any notice or other communication (in writing or, to the knowledge of the Company, otherwise) regarding any actual or possible violation or breach of, or default under any Product Contract, and the Company has not waived any of its material rights under any Product Contract; the Company has made available accurate and complete copies of each written Product Contract to Acquiror; and * Confidential treatment requested. neither the execution, delivery or performance of this Agreement nor the transactions contemplated hereunder will constitute or give rise to a default under any Product Contract or require the Consent of any other party to any Product Contract, except for those Consents included in the list on Section 2.15(d) to the Disclosure Schedule.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) 3.18 of the Disclosure Letter (specifying the appropriate paragraph):
(a) Neither Company Schedule, the Company does not have, nor any of its Subsidiaries is not a party to nor to, or is it bound by:
(i) any collective bargaining agreements;
any: (ii1) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonusemployment, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment contractor or consulting agreement, contract or commitment with an employee Employee or individual consultant consultant, contractor, or salesperson not in the Company’s standard form; (2) any agreement, contract or commitment to grant any bonus, severance, change in control or termination pay (in cash or otherwise) to any Employee; or (3) any contractor, consulting or sales agreement, contract contract, or commitment with a firm or other organization;
(vii) any agreement or plan (includingplan, including any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or the Ancillary Agreements in connection with additional or subsequent events) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viiii) any fidelity or surety bond or completion bond;
(viiiv) any collective bargaining, union or works council agreements;
(v) any lease of real or personal property having a value individually in excess of $25,000CDN$25,000 individually or CDN$50,000 in the aggregate;
(vi) any Contract, other than Company Standard Outbound Licenses, that provides for surety, guaranty or indemnification obligations of the Company or any of its Subsidiaries, which obligations are not capped to a maximum amount of liability equal to the greater of CDN$100,000 or the total amounts paid under the Contract;
(vii) any Contract relating to capital expenditures and involving future payments in excess of CDN$25,000 individually or CDN$50,000 in the aggregate;
(viii) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment relating to capital expenditures or involving future payments in excess of $25,000;
(xi) any agreement, arrangement, right, contract or commitment Contract relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s businessbusiness (which includes the business of any and all Subsidiaries);
(xiiix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiix) any purchase order or contract Contract for the purchase of raw materials involving in excess of CDN$25,000 individually or the provision of services involving $10,000 or more, other than purchases CDN$50,000 in the ordinary course of businessaggregate;
(xivxi) any construction contracts;
(xii) any joint marketing, affiliate, joint venture, partnership, strategic alliance or development Contract;
(xiii) any Contract 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;
(xiv) any Contract pursuant to which the Company or any of its Subsidiaries has undertaken to, or pursuant to which the receipt of revenue is contingent upon, the delivery of products or service offerings not in commercial existence as of the date hereof, and specifically not contingent upon the release of any new product or new version of an existing product;
(xv) any dealer, distribution, joint marketingsales representative, licensing original equipment manufacturer, manufacturing, value added, remarketer, reseller, or development agreementindependent software vendor, or other Contract for use or distribution of the products, services or other Technology of the Company or any of its Subsidiaries; or
(xvi) any other agreementContract, contract including any service, operating or commitment management agreement or arrangement with respect to any of the Leased Real Property, that involves CDN$25,000 individually or could result CDN$50,000 in payments to or by the Company of $25,000 aggregate or more or and is not cancelable by the Company without penalty within thirty (30) 30 days.
(b) Except for such alleged breaches, violations Each Contract to which the Company or any of its Subsidiaries is a party or any of its properties or assets (whether tangible or intangible) is subject is a valid and 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 2.12(b) binding agreement of the Company Scheduleor any of its Subsidiaries, as applicable, enforceable against each of the parties thereto in accordance with its terms, and is in full force and effect, unamended, with respect to the Company or any of its Subsidiaries, as applicable, and, to the Knowledge of the Company and/or any of its Subsidiaries, any other party thereto. The Company and each of its Subsidiaries is in material compliance with, and has not materially breached, violated or defaulted under, or received notice or has any reason to believe that a customer may assert that it has materially breached, violated or defaulted under, any of the terms or conditions of any agreementsuch Contract, contract or commitment nor to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder the Knowledge of which the Company has knowledge by and/or any of its Subsidiaries is any party obligated to the Company and/or any of its Subsidiaries pursuant theretoto any such Contract subject to any breach, violation or default thereunder, nor does the Company and/or any of its Subsidiaries have Knowledge of 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 any of its Subsidiaries or any such other party. True and complete copies of each Contract disclosed in the Disclosure Letter or required to be disclosed pursuant to this Section 3.18 (each a “Material Contract” and collectively, the “Material Contracts”) have been delivered to Parent.
(c) The Company and each of its Subsidiaries has obtained, fulfilled all material obligations required pursuant to each Contract to have been performed by the Company or will obtain any of its Subsidiaries prior to the Effective Timedate hereof, and, without giving effect to the Arrangement, the Company and each of its Subsidiaries will fulfill, when due, all necessary consentsof its obligations under the Material Contracts that remain to be performed after the date hereof.
(d) All outstanding indebtedness of the Company or any of its Subsidiaries, waivers and approvals of parties to any Contract as are required in connection with other than indebtedness owing under the Merger and the other transactions contemplated hereby and by the Ancillary AgreementsCompany Convertible Debentures, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)may be prepaid without penalty.
Appears in 1 contract
Sources: Acquisition Agreement (Taleo Corp)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company ScheduleSchedule 2.16(a), the Company does not have, is not a party to nor is it bound by:
(ia) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(ivb) any employment or consulting agreement, contract or commitment with any officer, director, employee or member of the Company's Board of Directors, other than those that are terminable by the Company without liability of financial obligation of the Company;
(c) any employment or consulting agreement with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with under which a firm or other organizationorganization provides services to the Company;
(vd) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(vie) any fidelity or surety bond or completion bond;
(viif) any lease of real or personal property having a value individually in excess of $25,00010,000;
(viiig) any agreement of indemnification, guaranty indemnification or suretyshipguaranty;
(ixh) any agreement, contract or commitment containing any covenant limiting in any respect the freedom right of the Company to engage in any line of business or to compete with any personperson or granting any exclusive distribution rights;
(xi) any agreement, contract or commitment agreement relating to capital expenditures or and involving future payments in excess of $25,000;
(xij) any agreement, arrangement, right, contract or commitment currently in force relating to the disposition or acquisition by the Company after the date of assets, properties or any interest this Agreement of a material amount of assets not in any business enterprise outside the ordinary course of business or pursuant to which the Company’s businessCompany has any material ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiik) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph clause (vig) abovehereof;
(xiiil) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of business;
(xivm) any construction contracts;
(xvn) any dealer, distribution, joint marketingmarketing (including any pilot program), licensing development, content provider, destination site or development merchant agreement;
(o) 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;
(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 person or entity;
(q) any agreement pursuant to which the Company has advanced or loaned any amount to any stockholder of the Company or any director, officer, employee or consultant other than business travel advances in the ordinary course of business consistent with past practice;
(r) any settlement agreement that provides for continuing obligations of the Company; or
(xvis) any other agreement, contract or commitment agreement that involves or could result in payments to or by the Company of $25,000 10,000 or more or is not cancelable by the Company 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, all as noted in Section 2.12(b) of the Company Scheduleset forth on Schedule 2.16(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 agreement, contract or commitment required to which it is a party be set forth on Schedule 2.16(a), Schedule 2.14(m) or by which it or its assets or properties are or may be bound Schedule 2.14(n) (any such agreement, contract or commitment, a “"Contract”"). Each Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.16(b), is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”).
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) 2.16 of the Disclosure Schedule (specifying the appropriate paragraph):
(a) The Company Schedule, the Company does not have, is not a party to to, nor is it bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant to grant any severance or salesperson termination pay (in cash or consulting or sales agreement, contract or commitment with a firm or other organizationotherwise);
(vii) any agreement or plan (includingplan, including any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viiii) any fidelity or surety bond or completion bond;
(viiiv) any lease of real or personal property having a value individually in excess of $25,00025,000 individually or $50,000 in the aggregate;
(viiiv) any agreement of indemnification, indemnification or guaranty or suretyshipoutside of the ordinary course of business;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xvi) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,00025,000 individually or $50,000 in the aggregate;
(xivii) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xiiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiiix) any purchase order or contract for the purchase of raw materials involving in excess of $25,000 individually or the provision of services involving $10,000 or more, other than purchases 50,000 in the ordinary course of businessaggregate;
(xivx) any construction contracts;
(xvxi) any dealer, distribution, joint marketing, licensing 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
(xvixv) any other agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 individually or $50,000 in the aggregate or more or and is not cancelable by the Company without penalty within thirty (30) 30 days.
(b) Except for such alleged breaches, violations 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 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 2.12(b) binding agreement of the Company Scheduleenforceable against each of the 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, any other party 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 agreementsuch Contract, contract or commitment nor to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder the Knowledge of which the Company has knowledge by is any party obligated to the Company pursuant theretoto any such Contract subject to any material breach, violation or default thereunder, nor does the Company have Knowledge of any event that with the lapse of time, giving of notice or 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 be disclosed pursuant to this Section 2.16 (each a “Material Contract” and collectively, the “Material Contracts”) have been delivered to Parent.
(c) The Company has obtained, or will obtain fulfilled all material obligations required pursuant to each Contract to have been performed by the Company prior to the Effective Timedate hereof, and, without giving effect to the Merger, the Company will fulfill, when due, all necessary consents, waivers and approvals of parties its obligations under the Material Contracts that remain to any Contract as are required in connection with be performed after the Merger and date hereof.
(d) All outstanding indebtedness of the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)Company may be prepaid without penalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company ScheduleSchedule 2.16, the Company does not have, Seller is not a party to nor is it or bound by:
(ia) any collective bargaining agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iiib) any bonus, deferred compensation, incentive compensation, pension, profit profit-sharing or retirement plans, or any other employee benefit plans or arrangements;
(ivc) any employment employment, except non-material oral agreements with employees (for purposes of this Agreement "non-material oral agreements" shall mean oral agreements that individually provide for salaries of less than $45,000 per annum) or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organizationcommitment;
(vd) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan) any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually in excess of $25,000;
(viiie) any agreement of indemnification, indemnification or guaranty not entered into in the ordinary course of business other than indemnification agreements between Seller and any of its officers or suretyshipdirectors;
(ixf) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Seller to engage in any line of business or to compete with any person;
(xg) any agreement, contract or commitment relating to future capital expenditures or and involving future payments obligations in excess of $25,00025,000 and not cancelable without penalty;
(xih) any agreement, arrangement, right, contract or commitment currently in force relating to the disposition or acquisition of assets, properties or any interest assets not in any business enterprise outside the ordinary course of the Company’s businessbusiness or any ownership interest in any corporation, partnership, joint venture or other business enterprise;
(xiii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiij) any purchase order joint marketing or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of businessdevelopment agreement;
(xivk) any construction contracts;
distribution agreement (xv) identifying any distribution, joint marketing, licensing or development agreementthat contain exclusivity provisions); or
(xvil) any other agreement, contract or commitment that involves (excluding real and personal property leases and agreements relating to the purchase of computer hardware for inventory for a purchase price of up to an aggregate $100,000) which involve payment by Seller under any such agreement, contract or could result in payments to or by the Company commitment of $25,000 or more or is not cancelable by in the Company without penalty within thirty aggregate. Seller or, to the best knowledge of Seller and each Seller Stockholder, any other party to a Seller Contract (30) days.
(b) Except for such alleged breachesas defined below), 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 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions of any agreementof the agreements, contract contracts or commitment commitments to which it Seller is a party or by which it or its assets or properties are or may be is bound of the type described in clauses (a) through (l) above (any such agreement, contract or commitment, a “"Seller Contract”). Each Contract is ") in full force and effect and is not subject such a manner as would permit any other party to cancel or terminate any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtainedsuch Seller Contract, or will obtain prior would permit any other party to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)seek damages.
Appears in 1 contract
Sources: Merger Agreement (Vizacom Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(aor excepted from (by virtue of the specific exclusions contained in Sections 2.12(g) or 2.12(h) of the Company Disclosure Schedule) Sections 2.12(g) and 2.12(h) of the Disclosure Schedule, or as set forth in Section 2.13(a) of the Disclosure Schedule, the Company does not have, is not a party to nor is it bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(vii) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viiii) any fidelity or surety bond or completion bond;
(viiiv) any lease of real or personal property having a value individually in excess of $25,00025,000 individually or $75,000 in the aggregate;
(viii) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xv) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,00025,000 individually or $75,000 in the aggregate;
(xivi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s 's business;
(xiivii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiiviii) any purchase order or contract for the purchase of raw materials involving in excess of $25,000 individually or the provision of services involving $10,000 or more, other than purchases 75,000 in the ordinary course of businessaggregate;
(xivix) any construction contracts;
(xvx) any dealer, distribution, joint marketing, licensing marketing or development agreement;
(xi) 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; or
(xvixii) any other agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 individually or $75,000 in the aggregate or more or and is not cancelable by the Company 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, all as noted in Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Va Linux Systems Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a) Schedule 4.20 of the Company Schedule Disclosure Letter sets forth all contracts a true, correct and complete list of each Company Material Contract (as defined below) that are material to the business or operations is in effect as of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with date of this Agreement. For purposes of this Agreement, any Ancillary Agreement, or the consummation “Company Material Contract” of the transactions contemplated hereby or thereby (collectivelyGroup Companies shall mean each Company IP Contract, the “Material Contracts”). Except as set forth in Section 2.12(a) each Company Real Property Lease and each of the Company Schedule, following Contracts to which any of the Company does not have, Group Companies is not a party to nor is it bound byparty:
(i) Each Contract (other than purchase orders with suppliers or customers entered into in the ordinary course of business) that the Company reasonably anticipates will involve annual payments or consideration furnished by or to any collective bargaining agreementsof the Group Companies of more than $3,000,000;
(ii) any agreements Each note, debenture, other evidence of indebtedness, guarantee, loan, credit or arrangements that contain any severance pay financing agreement or post-employment liabilities or obligations;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm instrument or other organization;
(v) any agreement or plan (including, any stock option plan, stock appreciation rights plan or stock purchase plan) contract for money borrowed by any of the benefits of which will be increasedGroup Companies from a third party, or the vesting of benefits of which will be acceleratedin each case, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually an outstanding principal amount in excess of $25,000;
(viii) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment relating to capital expenditures or involving future payments in excess of $25,000;
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit1,000,000, including guaranties or instruments the Existing Credit Agreements, but excluding guarantees of surety referred to in subparagraph (vi) above;
(xiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases performance under Government Contracts entered into in the ordinary course of business;
(xiviii) Each Contract for the acquisition of any construction contractsPerson or any business division thereof or the disposition of any material assets of any of the Group Companies (other than in the ordinary course of business), in each case, whether by merger, purchase or sale of stock or assets or otherwise (other than Contracts for the purchase or sale of inventory or supplies entered into in the ordinary course of business) occurring in the last five years;
(xviv) any distributionEach obligation to make payments, joint marketingcontingent or otherwise, licensing arising out of the prior acquisition of the business, assets or development agreement; orstock of other Persons;
(xviv) Each collective bargaining agreement with any other agreementlabor union;
(vi) Each employment or consulting (with respect to an individual, contract independent contractor) Contract providing for annual base salary or commitment consulting fee payments in excess of $300,000, excluding any such employment, consulting, or management Contract that involves or could result in payments to or either: (A) is terminable by the Company or the applicable Company Subsidiary at will; or (B) provides for severance, notice and/or garden leave obligations of 90 days or less or such longer period as is required by Applicable Legal Requirements;
(vii) Each lease, rental agreement, installment and conditional sale agreement, or other Contract that, in each case, (A) provides for the ownership of, leasing of, title to, use of, or any leasehold or other interest in any personal property; and (B) involves annual payments in excess of $25,000 500,000;
(viii) Each joint venture Contract, partnership agreement or more limited liability company agreement with a third party (in each case, other than with respect to wholly owned Company Subsidiaries);
(ix) Each Contract other than teaming agreements entered into in connection with the pursuit of a specific Government Contract or is not cancelable by subcontract thereto or customary non-disclosure agreements that purports to limit or contains covenants expressly limiting in any material respect the freedom of any of the Group Companies to: (A) compete with any Person in a product line or line of business; (B) operate in any geographic area; or (C) solicit customers;
(x) Each Contract (other than those made in the ordinary course of business): (A) providing for the grant of any preferential rights to purchase or lease any asset of the Group Companies; or (B) providing for any right (exclusive or non-exclusive) to sell or distribute any material product or service of any of the Group Companies;
(xi) Each Contract pursuant to which any of the Group Companies licenses material Intellectual Property from a third party, other than click-wrap, shrink-wrap and off-the-shelf software licenses, and any other software licenses that are available on standard terms to the public generally with license, maintenance, support and other fees less than $1,000,000 per year; and
(xii) Each obligation to register any Company Common Stock or other securities of the Company without penalty within thirty (30) dayswith any Governmental Entity.
(b) Except for such alleged breachesAll Company Material Contracts are: (i) in full force and effect, violations subject to the Remedies Exception; and defaults, (ii) represent the valid 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 2.12(b) binding obligations of the Company Schedule, or one of the Company has not breachedSubsidiaries party thereto and, violated to the Knowledge of the Company, represent the valid and binding obligations of the other parties thereto. True, correct and complete copies of all Company Material Agreements have been made available to Parent. None of the Group Companies nor, to the Knowledge of the Company, any other party thereto, is in breach of or defaulted default under, and no event has occurred which with notice or received notice that it has breached, violated lapse of time or defaulted both would become a breach of or default under, any of the terms Company Material Contracts, and no party to any Company Material Contract has given any written or, to the Knowledge of the Company, oral, claim or conditions notice of any agreementsuch breach, contract default or commitment event, which individually or in the aggregate, would be reasonably likely to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated material to the Company pursuant thereto. The Company has obtainedGroup Companies, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract taken as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)a whole.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business Except as contemplated by this Agreement or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) on Schedule 3.15 of the Company Disclosure Schedule, neither the Company does not have, nor the Subsidiary is not a party to to, nor is it either of them bound by:
(i) any collective bargaining agreements;
(iia) any agreements or arrangements with any current employee or consultant that contain contains any severance pay or post-employment liabilities or obligations;
(iiib) 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, pension, profit sharing 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, or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(vf) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan plan, or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(vig) any fidelity or surety bond or completion bond;
(viih) any agreement, contract, or commitment for the lease of real or personal property having a value individually in excess of $25,0005,000;
(viii) any agreement of indemnification, guaranty or suretyship;
(ixi) any agreement, contract contract, or commitment of indemnification or guaranty other than as set forth on Schedule 3.14, subject to such reasonable variations therein that are not individually materially adverse to the Company or the Subsidiary, as the case may require;
(j) any agreement, contract, or commitment containing any covenant limiting the freedom of the Company or the Subsidiary to engage in any line of business or to compete with any personperson or entity;
(xk) any agreement, contract contract, or commitment relating to capital expenditures or and involving future payments in excess of $25,00025,000 in the aggregate;
(xil) any agreement, arrangementcontract, right, contract or commitment relating to the disposition or acquisition of assets, properties assets (other than in the ordinary and usual course of business) or any interest in any business enterprise outside the ordinary course of the Company’s businessenterprise;
(xiim) 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, including guaranties credit to the Company or instruments of surety referred to in subparagraph (vi) abovethe Subsidiary;
(xiiin) any purchase order agreement, contract, or contract for the purchase of raw materials or the provision of services involving $10,000 or more, commitment concerning confidentiality (other than purchases those entered in the ordinary and usual course of business);
(xivo) any construction contractsagreement, 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;
(xvp) any distributionsales 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 marketingmarketing (including any pilot program), licensing or development agreement;
(q) any agreement, contract, or commitment pursuant to which the Company or the Subsidiary has advanced or loaned any amount to any shareholder of the Company or the Subsidiary or any director, officer, employee, or consultant of the Company or the Subsidiary other than business travel advances in the ordinary and usual course of business, consistent with past practice; or
(xvir) any other agreement, contract contract, or commitment that involves or could result in payments to or payment by the Company or the Subsidiary of $25,000 or more or which is not cancelable by the Company without penalty within thirty 30 days. Neither the Company nor the Subsidiary has breached, violated, or defaulted under, or received notice that it has breached, violated, or defaulted under, any of the terms or conditions of any agreement, contract 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 Disclosure Schedule (30) days.
(b) Except for any such alleged breachesagreement, violations contract or commitment, a "Contract"). Each of the Contracts is legal, valid and defaultsbinding 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 events 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 a breach, violation or default with the lapse of time, giving of notice, or both, all as noted in Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, both under any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder default, of which the Company or any Shareholder has knowledge knowledge, by any party obligated to the Company pursuant thereto. The Following the Closing, the Company has obtainedor 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 will obtain prior consideration other than ongoing fees, royalties or payments that the Company or the Subsidiary would otherwise be required to pay pursuant to the Effective Timeterms of such Contracts had the transaction contemplated by this Agreement not occurred. Without limiting the foregoing, all necessary consents, waivers and approvals upon consummation of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby by this Agreement, each Contract shall continue in full force and by the Ancillary Agreements, including all such consents, approvals effect in accordance with its terms without penalty or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)other adverse consequence.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a3.15(a) of the Company ScheduleDisclosure Letter (specifying the appropriate paragraph), as of the date of this Agreement, the Company does not have, is not a party to to, nor is it bound by:by (any Contract of a nature described below to which the Company is a party or otherwise bound being referred to herein as a “Material Contract”) and, collectively, as the “Material Contracts”):
(i) nor is its Subsidiary a party to or bound by, (A) any collective bargaining agreementsEmployee Agreement required to be listed on Section 3.23(a) of the Company Disclosure Letter and containing a commitment to grant any change in control payment, severance or other termination-related payment (whether payable in securities, cash or otherwise), other than Company Options or Company RSUs, or (B) any Employee Agreement required to be listed on Section 3.23(a) of the Company Disclosure Letter and which cannot be terminated without cause at the discretion of the Company or its Subsidiary, as applicable;
(ii) nor is its Subsidiary a party to or bound by, any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreementpolicy, contract or commitment with a firm or other organization;
(v) any agreement past practice or plan (including, including any stock option plan, stock appreciation rights plan or stock purchase planplan or other equity compensation arrangements (whether payable in securities, cash or otherwise)) any of the benefits of which will be provided or could be increased, or the vesting of benefits of which will could be accelerated, by the occurrence of any of the transactions contemplated by this Agreement Agreement, either alone or upon the Ancillary Agreements occurrence of additional or subsequent events (except as required by this Agreement) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby by this Agreement, either alone or therebyupon the occurrence of additional or subsequent events;
(iii) any agreement providing for the sale or other issuance of any Company Capital Stock;
(iv) all IP Licenses;
(v) any lease of tangible personal property providing for annual payments in excess of $50,000 individually or $200,000 in the aggregate;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually in excess of $25,000;
(viii) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,00075,000 individually or $750,000 in the aggregate;
(xivii) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course Ordinary Course of the Company’s businessBusiness;
(xiiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to Indebtedness, the borrowing of money or money, extension of credit, including guaranties credit or instruments of surety referred to in subparagraph (vi) abovesecurity interest;
(xiiiix) any pending purchase order or contract for the purchase of raw materials or services by the provision Company involving in excess of services involving $10,000 75,000 individually or more, other than purchases $750,000 in the ordinary course aggregate;
(x) any powers of businessattorney;
(xi) any standstill or similar Contract;
(xii) any Contracts providing for currency exchange, commodities or other similar hedging transactions;
(xiii) any Contract granting any exclusive rights, rights of first refusal or other similar rights, price protection, “most favored nation” or similar provisions, or otherwise limiting the rights of the Company to sell distribute or manufacture any products or services;
(xiv) any construction contractsTax allocation, sharing, indemnity or closing agreement or other similar Contract;
(xv) any agreements with any Governmental Authority;
(xvi) any partnership, joint venture, strategic alliance or similar Contract;
(xvii) any Contract to which an Interested Party is a party;
(xviii) any Contract involving the settlement of litigation or other similar claims;
(xix) any dealer, distribution, joint marketing, licensing or development agreement, sales representative, original equipment manufacturer, value added, remarketer, reseller, or independent software vendor, or other agreement for marketing, sales, provision or distribution of the Company’s products, technology or services; or
(xvixx) any other agreement, contract Contract or commitment commitment, including any service, operating or management agreement or arrangement with respect to any of the Company’s properties (whether leased or owned), that involves or could result annual payments in payments to or by the Company excess of $25,000 75,000 individually or $750,000 in the aggregate or more or and is not cancelable by the Company without penalty within thirty (30) days.
(b) Except for such alleged breaches, violations and defaultsThe Company is in compliance in all material respects with, 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 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted underunder in any material respect, or received written notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment Material Contract to which it the Company is a party or by which it any of its Assets and Properties are subject, nor has there occurred any event or its assets condition that could constitute such a breach, violation or properties are default with the lapse of time, giving of notice or may be bound (any such agreement, contract or commitment, a “Contract”)both. Each Material Contract to which the Company is a party or by which any of its Assets and Properties are subject is in full force and effect effect, and the Company is not subject to any material default thereunder of which the Company has knowledge by thereunder, nor is any party obligated to the Company pursuant thereto. to any such Contract subject to any material default thereunder.
(c) The Company has obtainedmade available to Parent true, or will obtain prior to correct and complete copies of all Contracts listed in Section 3.15(a) of the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary AgreementsCompany Disclosure Letter, including all such consentsamendments, approvals or waivers necessary to validly transfer supplements, exhibits and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)ancillary agreements thereto.
Appears in 1 contract
Sources: Merger Agreement (Lsi Corp)
Agreements, Contracts and Commitments. (a) Section 2.12(a2.21(a) of the Company Disclosure Schedule sets forth all contracts a true, correct and complete list of each Company Material Contract that are material to the business or operations is in effect. For purposes of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation “Company Material Contract” of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) Group Companies shall mean each Company Real Property Lease and each of the following Contracts (other than any Company ScheduleBenefit Plan) described in clauses (i) through (x) below to which any of the Group Companies is a party, the by which any Group Company does not haveis bound, is not a party to nor is it bound byunder which any Group Company has any obligation or under which any Group Company has any right or interest:
(i) Each Contract with any collective bargaining agreementsof the Top Vendors;
(ii) Each Contract (other than purchase orders or similar contracts with suppliers or customers entered into in the ordinary course of business) that the Company reasonably anticipates will involve annual payments or consideration furnished by or to any agreements or arrangements that contain any severance pay or post-employment liabilities or obligationsof the Group Companies of more than $500,000;
(iii) any bonusEach note, deferred compensationdebenture, pensionother evidence of indebtedness, profit sharing guarantee, loan, credit or retirement plans, financing agreement or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm instrument or other organization;
(v) any agreement or plan (including, any stock option plan, stock appreciation rights plan or stock purchase plan) Contract for money borrowed by any of the benefits of which will be increasedGroup Companies from a third party, or the vesting of benefits of which will be acceleratedin each case, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually an outstanding principal amount in excess of $25,000;
(viii) any agreement 500,000, excluding guarantees of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment relating to capital expenditures or involving future payments in excess of $25,000;
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases performance under Government Contracts entered into in the ordinary course of business;
(xiviv) Each Contract for the acquisition of any construction contractsPerson or any business division thereof or the disposition of any material assets of any of the Group Companies, in each case, whether by merger, purchase or sale of stock or assets or otherwise occurring in the last three years, other than Contracts (A) in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing or (B) between the Company and its Subsidiaries;
(xvv) Each collective bargaining (or similar) agreement or Contract with any distribution, joint marketing, licensing labor union or development agreement; orother body representing employees of the Company or any of the Company’s Subsidiaries;
(xvivi) Each employment or consulting (with respect to an individual, independent contractor) Contract providing for annual base salary or consulting fee payments in excess of $250,000, excluding any other agreementsuch employment, contract consulting, or commitment management Contract that involves or could result in payments to or is terminable by the Company or the applicable Company Subsidiary at will;
(vii) Each lease, rental agreement, installment and conditional sale agreement, or other Contract that, in each case, (A) provides for the ownership of, leasing of, title to, use of, or any leasehold or other interest in any personal property; and (B) involves annual payments in excess of $25,000 500,000;
(viii) Each joint venture Contract, partnership agreement or more limited liability company agreement with a third party (in each case, other than with respect to wholly owned Company Subsidiaries);
(ix) Each Contract (other than employment agreements, employee confidentiality and invention assignment agreements, equity or is not cancelable incentive equity documents and Government Contracts) between the Company and its Subsidiaries, on the one hand, and Affiliates of the Company or any of the Company’s Subsidiaries (other than the Company or any of the Company’s Subsidiaries), the officers, directors and managers (or equivalents) of the Company or any of the Company’s Subsidiaries, the members or stockholders of the Company or any of the Company’s Subsidiaries, any employee of the Company or any of the Company’s Subsidiaries or a member of the immediate family of the foregoing Persons, on the other hand (collectively, “Affiliate Agreements”);
(x) Each Contract with any employee or consultant of the Company or any of the Company’s Subsidiaries that provide for change in control, retention or similar payments or benefits contingent upon, accelerated by or triggered by the consummation of the Transactions or the de-SPAC Transactions;
(xi) Each Contract, other than customary non-disclosure agreements, that purports to limit or contains covenants expressly limiting in any material respect the freedom of any of the Group Companies to: (A) compete with any Person in a product line or line of business; (B) operate in any geographic area; or (C) solicit customers;
(xii) Each Contract (other than those made in the ordinary course of business): (A) providing for the grant of any preferential rights to purchase or lease any asset of the Group Companies; or (B) providing for any exclusive right to sell or distribute any material product or service of any of the Group Companies;
(xiii) Each Contract (including any license agreement, coexistence agreement and agreement with a covenant not to ▇▇▇) pursuant to which any of the Group Companies either (1) grants to a third Person a license, immunity, or other right in or to any material Owned Intellectual Property or (2) is granted by a third Person a license, immunity, or other right in or to any Intellectual Property or IT Systems material to the business of any Group Company; provided, however, that none of the following shall be required to be set forth on Section 2.21(a)(xiii) of the Company without penalty within thirty Disclosure Schedule but shall constitute Company Material Contracts if they otherwise qualify: (30x) daysnon-exclusive licenses of Owned Intellectual Property granted to customers in the ordinary course of business; (y) licenses of open source Software; and (z) click-wrap, shrink-wrap and off-the-shelf Software licenses, and software-as-service or similar cloud service agreements, in each case that are for uncustomized Software or services and available on standard terms to the public generally with license, maintenance, support and other fees less than $500,000 per year; and
(xiv) Any outstanding written commitment to enter into any Contract of the type described in subsections (i) through (xiii) of this Section 2.21(a).
(b) Except for such alleged breachesAll Company Material Contracts are: (i) in full force and effect, violations subject to the Remedies Exception and defaults(ii) represent the legal, valid 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 2.12(b) binding obligations of the Company Schedule, or one of the Company has not breachedSubsidiaries party thereto and, violated to the Company’s knowledge, represent the legal, valid and binding obligations of the other parties thereto. True, correct and complete copies of all Company Material Contracts have been made available to Purchaser. None of the Group Companies nor, to the Company’s knowledge, any other party thereto, is in breach of or defaulted default under, and no event has occurred which with notice or received notice that it has breached, violated lapse of time or defaulted both would become a breach of or default under, any of the terms Company Material Contracts, and no party to any Company Material Contract has given any written or, to the Company’s knowledge, oral, claim or conditions notice of any agreementsuch breach, contract default or commitment event, which individually or in the aggregate, would be reasonably likely to which it is be material to the Group Companies, taken as a party or by which it or its assets or properties are or may be bound whole.
(any such agreement, contract or commitment, a “Contract”). Each Contract is c) Other than the Affiliate Agreements listed in full force and effect and is not subject to any default thereunder Section 2.21 of which the Company has knowledge by Disclosure Schedule, there are no other transactions pending or contemplated between any party obligated of the Group Companies and any of their current or former shareholders and Affiliates related to the Company pursuant thereto. The Company has obtainedbusiness, ownership or will obtain prior to operations of the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)Company.
Appears in 1 contract
Sources: Series X Preferred Stock Purchase Agreement (InterPrivate III Financial Partners Inc.)
Agreements, Contracts and Commitments. (a) Except for this Agreement, the Related Agreements and the Contracts specifically identified on Section 2.12(a3.11(d) of the Company Disclosure Schedule sets forth all contracts (with each of such Contracts specifically identified or cross-referenced under subsection(s) of such Section 3.12 of the Disclosure Schedule that are material correspond to the business Subsection or operations Subsections of this Section 3.12 of the Disclosure Schedule), as of the Agreement Date, none of the Company nor any of its Subsidiaries is a party to, bound by or which by their terms seek to limit or define those activities in which uses the Company is permitted or required to engage or which require benefits of any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material following Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party to nor is it bound by:
(i) (A) any collective bargaining agreementsemployment, independent contractor or consulting Contract with any current Employee (other than any Personnel Agreements), identifying whether any such Contract is not immediately terminable at-will by the Company without contractual severance, advance notice or other cost or liability (B) any Contract for severance, change of control payments or vesting acceleration, retention bonuses, or termination pay (in cash or otherwise) to any Employee or other separation agreement, (C) any other form of Employee Agreement with a current Employee (other than any Personnel Agreements), (D) any bonus or commission plan, or any bonus agreements or commission agreements with any Employee, and a schedule of bonus or commission commitments made to Employees, or (E) any settlement agreement with any Employee or other Person, as well as any settlement agreement, consent decree, or other similar agreement with any Governmental Entity, (1) pursuant to which claims for harassment or discrimination were released; or (2) under which the Company or any of its Subsidiaries has any current actual or potential Liability (in each case, other than waiver and releases in exchange for severance in the normal course);
(ii) any agreements Contract or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonusplan, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(v) any agreement or plan (including, including any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will (A) shall be increased, or the vesting of {N4442029.10} 255288355 v23 benefits of which will shall be accelerated or may be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or (B) the value of any of the benefits of which will shall be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(vi) any fidelity or surety bond or completion bond;
(viiiii) any lease of any real property or personal property having a value individually property;
(iv) any Contract relating to capital expenditures and involving future payments in any amount in excess of $25,0005,000 individually or $100,000 in the aggregate, in each case in any fiscal year;
(viiiv) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment relating to capital expenditures or involving future payments in excess of $25,000;
(xi) any agreement, arrangement, right, contract or commitment Contract relating to the disposition or acquisition of assets, properties ownership of assets or any interest in any business enterprise outside the ordinary course Ordinary Course of the Company’s businessBusiness;
(xiivi) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit or other Indebtedness;
(vii) any purchase order or Contract for the purchase of tangible items of equipment or related services in any amount in excess of $5,000 individually or $100,000 in the aggregate, including guaranties in each case in any fiscal year;
(viii) any Inbound License;
(ix) any Outbound License;
(x) any Contract with a Top Customer;
(xi) any Contract with a Top Supplier;
(xii) any Contract pursuant to which (A) the Company resells, distributes, or instruments acts as a sales agent, OEM or other channel partner with respect to any products or services of surety referred to in subparagraph a third party; or (viB) aboveany third party product or service is incorporated into, integrated with, or offered through or as a part of the Company Products;
(xiii) any purchase order Contract with a third party service provider to provide services to the Company’s customers as part of or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of businessconnection with Company Products;
(xiv) any construction contractsconfidentiality and non-disclosure agreements (whether the Company or any of its Subsidiaries is the beneficiary or the obligated party thereunder), other than with Parent or any of its Subsidiaries or those related to commercial transactions in the Ordinary Course of Business that are not individually material;
(xv) any distributionContract with non-Employee third parties providing for “offshore” or outsourced development of any material items of Technology by, joint marketing, licensing for or development agreement; oron behalf of the Company or any of its Subsidiaries;
(xvi) any Contract required to be disclosed on Section 3.9 of the Disclosure Schedule; {N4442029.10} 255288355 v23
(xvii) any Contract with federal, state, city, county, parish, municipal or other agreementGovernmental Entities, contract or commitment with another entity pursuant to that entity’s or any higher tier entity’s Contract with federal, state, city, county, parish, municipal or other Governmental Entities;
(xviii) (A) any management service, legal partnership or joint venture Contract, (B) any Contract that involves a sharing of revenues, profits, cash flows, expenses or could result in payments losses with other Persons and (C) any Contract that involves the payment of royalties to or any other Person by the Company or any Subsidiary;
(xix) any agency, dealer, distribution, sales representative, remarketer, reseller, or other Contract for the distribution of Company Products;
(xx) any Contract pursuant to which the Company or any of its Subsidiaries is bound to or has committed to provide any product or service to any third party on a most favored nation basis or similar terms;
(xxi) any Contract granting any license or other rights to or from the Company or any of its Subsidiaries with respect to Personal Information, other than grants to service providers to use such Personal Information in connection with the provision of services to the Company or any of its Subsidiaries;
(xxii) other than with respect to this Agreement and the Letter of Intent, any standstill or similar agreement containing provisions prohibiting a third party from purchasing Equity Interests of the Company or any of its Subsidiaries or assets of the Company or any of its Subsidiaries or otherwise seeking to influence or exercise control over the Company or any of its Subsidiaries, or any Contract pursuant to which it has any material ownership in any other person;
(xxiii) any Contract pursuant to which the Company or any of its Subsidiaries has acquired a business or entity, or a material portion of the assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets, exclusive license or otherwise;
(xxiv) any agreement of indemnification with officers, directors or managers of the Company or any of its Subsidiaries;
(xxv) any Contract with any investment banker, broker, advisor or similar party, or any accountant, legal counsel or other Person retained by the Company or any of its Subsidiaries, in connection with this Agreement and the transactions contemplated hereby;
(xxvi) any Contract or other arrangement to settle any Legal Proceeding or to settle any threatened or reasonably anticipated Legal Proceeding;
(xxvii) any Contract relating to a referral or partner arrangement under which the Company pays or receives compensation in exchange for the referral of a customer;
(xxviii) any Contract with a third party payor, including Governmental Entities; and
(xxix) any other Contract that involves the payment or receipt by the Company or any of its Subsidiaries of $25,000 5,000 individually or more $100,000 in the aggregate or more, in each case in any fiscal year, and is not cancelable by the Company without penalty within thirty ninety (3090) days.. {N4442029.10} 255288355 v23
(b) Except The Company has made available correct and complete copies of each Contract required to be disclosed pursuant to Sections 3.2, 3.9, 3.10, 3.11 (including, for such alleged breachesthe avoidance of doubt, violations each Contract entered into on a Standard Form Agreement and defaultseach Contract that is excluded for listing purposes only but is otherwise applicable to the Section), 3.12 and events 3.19(a). For the purposes of this Agreement, each of the foregoing Contracts referenced in this subsection as well as any Contracts entered into subsequent to the Agreement Date and prior to the Closing Date that would constitute have been required to be disclosed pursuant to Sections 3.2, 3.9, 3.10, 3.11 (including, for the avoidance of doubt, each Contract entered into on a breachStandard Form Agreement and each Contract that is excluded for listing purposes only but is otherwise applicable to the Section), violation or default with 3.12 and 3.19(a) if such Contract had been in effect as of the lapse of timeAgreement Date, giving of notice, or both, all as noted in Section 2.12(bshall each be a “Material Contract” and collectively are the “Material Contracts.”
(c) Each of the Company Scheduleand its Subsidiaries has performed all the obligations required to be performed by it and is entitled to all benefits under, and has not received notice or other communication that it is in default of, any Material Contract. Each of the Material Contracts is valid, binding and enforceable against the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of its Subsidiaries (to the terms or conditions of any agreement, contract or commitment to which it extent such entity is a party or by which it or its assets or properties are or may be bound (any to such agreementMaterial Contract), contract or commitment, a “Contract”). Each Contract and is in full force and effect effect, subject only to the effect, if any, of the Bankruptcy and is not subject to any Equity Exception. There exists no default thereunder or event of which the Company has knowledge by any party obligated default or event, occurrence, condition or act, with respect to the Company pursuant theretoor any of its Subsidiaries, or to the Knowledge of the Company, with respect to any other contracting party, that, with the giving of notice, the lapse of time or the happening of any other event or condition, would reasonably be expected to (i) become a material default or event of default under any Material Contract or (ii) give any third party (A) (A) the right to declare a material default or exercise any remedy under any Material Contract, (B) the right to a rebate, chargeback, refund, credit, penalty or change in delivery schedule under any Material Contract, (C) the right to accelerate the maturity or performance of any obligation of the Company or any of its Subsidiaries under any Material Contract, or (D) the right to cancel, terminate or modify any Material Contract. None of the Company nor any of its Subsidiaries has received any written notice or other communication regarding any actual or alleged violation or breach of, default under, or intention to cancel or modify any Material Contract. None of the Company nor any of its Subsidiaries has any Liability for renegotiation of Contracts with Governmental Entities. The Company has obtainedheretofore made available to Parent correct and complete copies of each written Material Contract, or will obtain prior to the Effective Time, together with any and all necessary consents, waivers material amendments and approvals of parties to any Contract as are required in connection with the Merger supplements thereto and the other transactions contemplated hereby “side letters” and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)similar documentation relating thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a3.17(a) of the Company ScheduleDisclosure Schedules, the Company does not have, is not a party to nor is it or bound by:
(i1) any collective bargaining agreementsemployment, sales or consulting agreement or other Contract with an employee, individual consultant or salesperson;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(v2) any agreement or plan (includingplan, including any stock option plan, stock appreciation rights incentive plan or stock purchase plan) plan with respect to Equity Interests of the Company, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements Transactions or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;Transactions; W02-SD:6AFP1\51393538 -26- Agreement and Plan of Merger 09EY-117690 PAGE
(vi3) any fidelity or surety bond or completion bond;
(vii4) any lease Lease of real or personal property having a value individually an annual rental rate in excess of $25,0005,000 individually or $10,000 in the aggregate;
(viii5) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment Contract relating to capital expenditures or involving future payments in excess of $25,0005,000 individually or $10,000 in the aggregate;
(xi6) any agreement, arrangement, right, contract or commitment Contract relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise Entity outside the ordinary course Ordinary Course of the Company’s businessBusiness;
(xii7) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments Contracts relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiii) 8) any purchase order or contract for the purchase of raw materials exceeding $5,000 individually or the provision of services involving $10,000 or more, other than purchases in the ordinary course of businessaggregate;
(xiv9) any construction contracts;
(xv10) any dealer, distribution, sales, joint marketing, licensing marketing or development agreementContract;
(11) any sales representative, original equipment manufacturer, value added, remarketing, reseller or independent software vendor or other Contract (other than Licenses) for use or distribution of any Company Product, any Company Intellectual Property, Material Intellectual Property Rights or any services provided by the Company; or
(xvi12) any other agreement, contract or commitment Contract not otherwise set forth in Section 3.17(a) of the Disclosure Schedules that involves or could result in payments to or by the Company of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) calendar 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, all as noted set forth in Section 2.12(b3.17(b) of the Company ScheduleDisclosure Schedules, the Company is in compliance with and has not breached, violated Breached or defaulted under, or received notice that it has breached, violated Breached or defaulted under, any of the terms or conditions of any agreement, contract Contract or commitment license to which it is a party or by which it is bound or its assets under which it is a licensee, nor does the Company have Knowledge of any Event that would constitute such a Breach or properties are default with the lapse of time, giving of notice or may be bound (any such agreement, contract or commitment, a “Contract”)both. Each such Contract and license is in full force and effect and is not subject to any default thereunder thereunder.
(c) Except as set forth in Section 3.17(c) of which the Company has knowledge by any party obligated to Disclosure Schedules, the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective TimeClosing, all necessary consents, waivers and approvals Consents of parties to any Contract all Company Contracts as are required thereunder in connection with the Merger consummation of the Transactions, so that (i) the consummation of the Transactions shall not Breach any such Company Contract, and (ii) each such Company Contract shall remain in full force and effect without modification, limitation or alteration after the other transactions contemplated hereby and by Closing. Following the Ancillary AgreementsClosing, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation will be permitted to exercise all of its rights under the Contracts without the payment of any additional amounts or consideration other than amounts or consideration which the Company would otherwise be required to pay had the Merger not occurred. Without limiting the foregoing, the consummation of the Transactions will not (i) result in the “Requisite Consents”)Breach of any Company Contract, (ii) adversely impact any existing Company Contract with any Governmental Body, or (iii) to the Knowledge of the Company, result in any Material decrease in orders of Company Products or Technology from, or sales, licensing or other distributions of Company Products or Technology to, any customer or client set forth in Section 3.30 of the Disclosure Schedules. W02-SD:6AFP1\51393538 -27- Agreement and Plan of Merger 09EY-117690 PAGE
(d) Section 3.17(d) of the Disclosure Schedules sets forth a complete and accurate list of all offers or bids made to any customer or prospective customer of the Company, which offer or bid (i) could generate revenues or involve expenses in excess of $150,000, and (ii) has not been rejected by each Person who has the right to accept such offer or bid. The Company has heretofore delivered true and complete copies of each such offer or bid to Parent.
Appears in 1 contract
Sources: Merger Agreement (Spacedev Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in on Section 2.12(a4.19(a) of the Company ScheduleSeller Disclosure Letter, neither the Company does not have, nor any of its subsidiaries is not a party to nor or is it bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an any officer or director or higher level employee or individual consultant member of the Company’s Board of Directors, other than those that are terminable by the Company or salesperson any of its subsidiaries on no more than thirty (30) days notice without liability or consulting or sales agreement, contract or commitment with a firm or other organizationfinancial obligation to the Company;
(vii) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights right plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually in excess of $25,000;
(viiiiii) any agreement of indemnificationindemnification or any guaranty other than any agreement of indemnification entered into in connection with the sale, guaranty license, distribution, reselling or suretyshipother transfer of software products in the ordinary course of business or in connection with the provision of services in the ordinary course of business;
(ixiv) any agreement, contract or commitment containing any covenant limiting in any respect the freedom right of the Company or any of its subsidiaries to engage in any line of business presently conducted by the Company or any subsidiary, or to compete with any personperson or granting any exclusive distribution rights;
(xv) any agreement, contract or commitment relating to capital expenditures or involving future payments currently in excess of $25,000;
(xi) any agreement, arrangement, right, contract or commitment force relating to the disposition or acquisition of assets, properties by the Company or any interest of its subsidiaries after the date of this Agreement of a material amount of assets not in any business enterprise outside the ordinary course of business or pursuant to which the Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than the Company’s businesssubsidiaries;
(xiivi) any dealer, distributor, joint marketing or development agreement currently in force under which the Company or any of its subsidiaries have continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of sixty (60) days or less, or any material agreement pursuant to which the Company or any of its subsidiaries have continuing material obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Seller or any of its subsidiaries and which may not be canceled without penalty upon notice of sixty (60) days or less;
(vii) any agreement, contract or commitment currently in force to provide source code to any third party for any product or technology that is material to the Company and its subsidiaries taken as a whole;
(viii) any agreement, contract or commitment currently in force to license any third party to manufacture or reproduce any Company Products, service or technology or any agreement, contract or commitment currently in force to sell or distribute any Company Products, services or technology, except agreements with distributors or sales representative in the normal course of business cancelable without penalty upon written notice of ninety (90) days or less;
(ix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiix) any purchase order or contract for material settlement agreement entered into within three (3) years prior to the purchase date of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of business;
(xiv) any construction contracts;
(xv) any distribution, joint marketing, licensing or development agreementthis Agreement; or
(xvixi) any other material agreement, contract or commitment currently in force that involves is outside the ordinary course of business or could result in payments to or by the Company that has a value of $25,000 50,000 or more or is not cancelable by the Company without penalty within thirty a twelve (3012) daysmonth period in any individual case.
(b) Except for such alleged breachesNeither the Company nor any of its subsidiaries, violations and defaultsnor to Seller’s knowledge any other party to a Company Contract (as defined below), and events that would constitute a is in material breach, violation or default with the lapse of timeunder, giving of notice, or both, all as noted in Section 2.12(b) of and neither the Company Schedule, the Company nor any of its subsidiaries 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 agreementof the agreements, contract contracts or commitment commitments to which it the Company or any of its subsidiaries is a party or by which it or its assets or properties is bound that are or may required to be bound set forth in the Seller Disclosure Letter (any such agreement, contract or commitment, a “Company Contract”). Each Contract is ) in full force and effect and is not subject such a manner as would permit any other party to cancel or terminate any default thereunder of which the such Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtainedContract, or will obtain prior would permit any other party to seek material damages or other remedies (for any or all of such breaches, violations or defaults, in the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”aggregate).
Appears in 1 contract
Sources: Stock Purchase Agreement (Qpagos)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”)3.18.1. COMPANY AGREEMENTS. Except as set forth in Section 2.12(a) of the Company Scheduleon SCHEDULE 3.18 hereto, the Company does not have, is not a party to nor is it bound byto:
(ia) any collective bargaining agreementsemployment agreement with any present employee, officer, director or consultant (or former employees, officers, directors and consultants to the extent there remain at the date hereof obligations to be performed by the Company);
(iib) any agreements agreement for personal services or arrangements employment with a term of service or employment specified in the agreement in which the Company has agreed on the termination of such agreement to make any payments greater than those that contain any severance pay or post-employment liabilities or obligationswould otherwise be imposed by law;
(iiic) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangementsagreement of guarantee of the obligations of others;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(vd) any agreement or plan (including, any stock option plan, stock appreciation rights plan or stock purchase plan) any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually in excess of $25,000;
(viii) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any a covenant limiting or purporting to limit the freedom of the Company to compete with any person in any geographic area or to engage in any line of business or to compete with any personbusiness;
(xe) any joint venture or profit-sharing agreement;
(f) except for trade indebtedness incurred in the ordinary course of business and reflected on the February Balance Sheet, contract any loan or credit agreements providing for the extension of credit to the Company or any instrument evidencing or related in any way to indebtedness incurred in the acquisition of companies or other entities or indebtedness for borrowed money by way of direct loan, sale of debt securities, purchase money obligation, conditional sale, lease, guarantee, or otherwise that individually is in the amount of $25,000 or more;
(g) any license or royalty agreement (other than (A) those disclosed on SCHEDULE 3.17, (B) with respect to Commercial Software or (C) End-User Licenses granted by the Company as licensor);
(h) any distribution, VAR or OEM agreement (identifying any that contain exclusivity provisions);
(i) any agreement or arrangement with any third party to develop any intellectual property or other asset expected to be used or currently used or useful in the Company's business;
(j) any agreement or arrangement for the Company to develop any intellectual property or other asset for any third party;
(k) any agreement or arrangement providing for the payment of any commission based on sales;
(l) any agreement for the sale or license by or to the Company of materials, products, services or supplies that involves future payments to the Company of more than $25,000;
(m) any agreement for the purchase by the Company of any materials, equipment, services, or supplies, that either (i) involves a binding commitment relating by the Company to capital expenditures or involving make future payments in excess of $25,000;
25,000 and cannot be terminated by it without penalty upon less than three months' notice or (xiii) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases was not entered into in the ordinary course of business;
(xivn) any agreement or commitment for the acquisition, construction contractsor sale of fixed assets owned or to be owned by the Company that involves future payments by it of more than $25,000;
(xvo) any distributionagreement or commitment to which present or former directors or officers (or their Affiliates or members of their immediate families) or Affiliates (or directors or officers of an Affiliate) are also parties;
(p) any agreement not described above (ignoring, joint marketingsolely for this purpose, licensing any dollar amount thresholds in those descriptions) involving the payment or development agreementreceipt by the Company of more than $25,000, other than the Company Leases; or
(xviq) any other agreementagreement not described above that was not made in the ordinary course of business and that is material to the financial condition, contract business, operations, assets, results of operations or commitment that involves or could result in payments to or by the Company of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) days.
(b) 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 Section 2.12(b) prospects of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)Company.
Appears in 1 contract
Sources: Merger Agreement (Allaire Corp)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) 2.14 of the Company Disclosure Schedule, the Company does not havehave continuing obligations under, is not a party to to, nor is it bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(v) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated 23 on the basis of any of the transactions contemplated hereby or therebyby this Agreement, except as provided herein;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value annual lease payments individually in excess of $25,000US$10,000;
(viii) any agreement of indemnification, indemnification or guaranty or suretyshipother than in the ordinary course of business;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,000US$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 involving future payments in excess of US$50,000 in the aggregate);
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties material assets or any interest in any business enterprise outside the ordinary course of the Company’s 's business;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) aboveany guarantees;
(xiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $US$10,000 or more, other than purchases in the ordinary course of business;
(xiv) any construction contracts;
(xv) any distribution, joint marketing, licensing 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
(xvixvii) any other agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 US$10,000 or more or is not cancelable by the Company 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, all as noted in Section 2.12(b) of the Company Schedule, the The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions of (i) any agreement, contract or commitment set forth in Section 2.14 of the Disclosure Schedule, or (ii) any other agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be is bound (any such agreement, contract or commitment, a “Contract”"CONTRACT"). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge 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 Effective TimeClosing, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by each of the Ancillary Related Agreements, including all such consents, approvals or waivers necessary as are required or advisable in order to validly transfer remain in effect without modification after the consummation of the transactions contemplated hereby and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)thereby.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Scheduledisclosed on Schedule 5.14, the Company does not have, Seller is not a party to nor is it or bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iva) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson any Employee who performed services on behalf of the Business, or consulting or sales agreement, contract or commitment with a firm or other organizationorganization relating to any Employee who performed services on behalf of the Business;
(vb) any agreement or plan (with or for the benefit of any Employee of the Business, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(vic) any fidelity or surety bond or completion bondbond secured by the Assets;
(vii) any lease of real or personal property having a value individually in excess of $25,000;
(viii) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xd) any agreement, contract or commitment relating to capital expenditures or with respect to the Assets and involving future payments in excess of $25,00020,000 annually or $100,000 in the aggregate for the term of such agreement(s);
(xie) any agreement, arrangement, right, contract or commitment relating to the licensing, sale or disposition or acquisition of assets, properties or any interest in any business enterprise outside the ordinary course of the Company’s businessAssets (other than this Agreement);
(xiif) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) abovecredit secured by any Assets;
(xiiig) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or moredealer, other than purchases in the ordinary course of business;
(xiv) any construction contracts;
(xv) any distribution, joint marketing, licensing marketing or development agreementagreement relating to the Business; or
(xvih) any other agreement, contract or commitment relating to the Business that involves $50,000 annually or could result $100,000 in payments to or by the Company aggregate for the term of $25,000 such agreement(s) or more or and is not cancelable by the Company cancellable 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 days after the lapse of time, giving of notice, or both, all as noted in Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated Seller to the Company pursuant other party thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”).
Appears in 1 contract
Sources: Asset Purchase Agreement (Griffin Land & Nurseries Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company ScheduleDisclosure Letter, the Company does not have, is not a party to nor is it bound by:
(i) any collective bargaining agreements;
(ii) any agreements Contracts or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment Contract with an employee or individual consultant or salesperson or any consulting or sales agreement, contract agreement or commitment with a Contract under which any firm or other organizationorganization provides services to the Company;
(v) any agreement or plan (includingplan, including any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (or upon the Ancillary Agreements 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 transactions contemplated hereby by this Agreement (or therebyupon the occurrence of any subsequent events);
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually in excess of $25,00025,000 individually or $50,000 in the aggregate;
(viii) any agreement of indemnification, guaranty indemnification or suretyshipguaranty;
(ix) any agreement, contract or commitment Contract containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment Contract relating to capital expenditures or and involving future payments in excess of $25,00050,000 individually or $100,000 in the aggregate;
(xi) any agreement, arrangement, right, contract or commitment Contract relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside other than the ordinary course sale of inventory in the Company’s businessOrdinary Course of Business;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph clause (viviii) abovehereof;
(xiii) any purchase order or contract Contract for the purchase of raw materials or the provision of services finished products involving $10,000 50,000 or more, other than purchases more per order or $100,000 or more in the ordinary course aggregate to be incurred by the Company following the date of businessthis Agreement;
(xiv) any construction contractsContracts;
(xv) any distribution, joint marketing, licensing marketing or development agreement; or;
(xvi) any agreement pursuant to which the Company has granted or may grant in the future, to any party, a source-code license or option or other agreementright to use or acquire source-code, contract or commitment or
(xvii) any other Contract that involves or could result in payments to or by the Company of $25,000 50,000 or more individually or $100,000 or more in the aggregate or is not cancelable by the Company 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, all as noted in Section 2.12(b) of the Company Schedule, the The Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract Contract required to be set forth on Section 2.11 or commitment to which it is a party or by which it or its assets or properties are or may be bound Section 2.12(a) of the Company Disclosure Letter (any such agreement, contract or commitmentContract, a “Key Contract”). Each Key Contract is in full force and effect and is not subject to any default thereunder and, except as otherwise disclosed in Section 2.12(b) of which the Company has knowledge by any Disclosure Letter, to the Company’s Knowledge, no 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 a Key Contract as are required is in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)default thereunder.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a4.15(a) of the Company ScheduleDisclosure Letter (specifying the appropriate subparagraph), the Company does not have, is not a party to to, nor is it bound by:by any of the following (each, a “Material Contract”):
(i) any collective bargaining agreementsemployment agreement other than any agreement or offer letter that is terminable at- will, without prior notice and without triggering any obligation to provide additional benefits such as severance benefits, termination payments, or equity acceleration;
(ii) any agreements or arrangements that contain any severance pay or postwith the currently active top 20 customers of Company Products by revenues generated in connection with such customers on a consolidated basis for the 12-employment liabilities or obligationsmonth period ended on December 31, 2023;
(iii) any bonusagreements with the currently active top 20 suppliers of the Company, deferred compensationwhether of products, pensionservices, profit sharing royalty payments, Intellectual Property Rights or retirement plansotherwise, or any other employee benefit plans or arrangementsby dollar volume of purchases by the Company for the 12-month period ended December 31, 2023;
(iv) any employment or consulting agreement, contract or commitment with an employee to grant any severance or individual consultant termination pay or salesperson benefits (in cash or consulting or sales agreementotherwise, contract or commitment with a firm or other organizationbut excluding statutory notice payments and payments required by applicable Law) to any Employee of the Company;
(v) any agreement or plan (including, with any stock option plan, stock appreciation rights plan or stock purchase plan) Employee under which the Company has any ongoing liability which provides for the increase of the benefits of which will be increasedbenefits, or the accelerated vesting of benefits of which will be acceleratedbenefits, by upon the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the Ancillary Agreements or the value occurrence of any of the additional subsequent events) or which provides for benefits of with a value which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement (other than as required by local Law);
(vi) any collective bargaining agreements, labor union Contracts (including any Contract or agreement with any works council, trade union, or other labor-relations entity) or similar Contract (each a “Labor Agreement”);
(vii) any fidelity or surety bond or completion bond;
(viiviii) any lease of real or personal property or equipment having a value individually in excess of $25,000;
(viii) any agreement of indemnification, guaranty or suretyship50,000in the aggregate;
(ix) any agreementagreement of indemnification or guaranty, contract but excluding agreements of indemnification or commitment containing any covenant limiting guaranty that are contained in the freedom Company’s written agreements with its customers, vendors, consultants or contractors that have been entered into in the ordinary course of the Company to engage in any line of business or to compete with any personbusiness;
(x) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,00050,000 in the aggregate;
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiii) any purchase order agreement set forth in Section 4.11;
(xiv) any agreement providing a customer with refund rights;
(xv) any contracts, licenses and agreements to which the Company (a) grants to a third Person a license or contract for the purchase of raw materials other right in or the provision of services involving $10,000 to any material Company Intellectual Property, or more(b) is granted by a third Person a license or other right in or to any material Intellectual Property Right, other than purchases but excluding (i) non-disclosure agreements entered into in the ordinary course of business;
; (xivii) any construction non-exclusive inbound licenses for uncustomized software that is generally commercially available to the public on standard or nondiscriminatory terms, including licenses for Open Source; (iii) contracts;
, licenses and agreements under which the only Company Intellectual Property granted, licensed or provided by the Company is to contractors or vendors, in the ordinary course of business, for the purpose of providing products or services to the Company; (xviv) any distributionCompany’s contracts, joint marketinglicenses or agreements with its customers in the ordinary course of business that grant non-exclusive licenses to use Company Products that are term-limited or are otherwise terminable by the Company; or (v) proprietary information, licensing confidentiality and assignment agreements with employees, consultants or development agreementcontractors; or
(xvi) any other agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) daysLease Agreement.
(b) Except for such alleged breaches, violations The Company is in material compliance with 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 2.12(b) of the Company Schedule, 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 agreementMaterial Contract, contract nor does the Company have Knowledge of any event that would constitute such a breach, violation or commitment to which it is a party default with the lapse of time, giving of notice or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”)both. Each Material Contract is in full force and effect effect, and the Company is not subject to any default thereunder thereunder, nor to the Knowledge of which the Company has knowledge by is any party obligated to the Company pursuant theretoto any such Material Contract subject to any material default thereunder. The Company has obtainedExcept as set forth in Section 4.15(b) of the Disclosure Letter, no Material Contract will terminate, or will obtain prior may be terminated by either party, solely by the passage of time or at the election of either party within 120 days after the Closing. To the Knowledge of the Company, no party to the Effective Time, all necessary consents, waivers and approvals a Material Contract has any intention of parties to any terminating such Material Contract as are required in connection with the Company or reducing the volume of business such party conducts with the Company, whether as a result of the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)otherwise.
Appears in 1 contract
Sources: Merger Agreement
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company ScheduleSchedule 2.16(a), the Company does not have, is not currently a party to nor is it currently bound by:
(ia) any collective bargaining agreements;
(iib) any agreements employment or arrangements consulting agreement, contract or commitment with any officer, director, employee or member of the Company's Board of Directors, other than those that contain any severance pay or post-employment liabilities or obligationsare terminable by the Company at will;
(iiic) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(ivd) any employment or consulting agreement, contract or commitment agreement with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with under which a firm or other organizationorganization provides services to the Company;
(ve) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyAgreement;
(vif) any fidelity or surety bond or completion bond;
(viig) any lease of real or personal property having a value individually in excess of $25,000;
(viiih) any agreement of indemnification, guaranty indemnification or suretyshipguaranty;
(ixi) any agreement, contract or commitment containing any covenant limiting in any respect the freedom right of the Company to engage in any line of business or to compete with any personperson or granting any exclusive distribution rights;
(xj) any agreement relating to capital expenditures and involving future payments in excess of $20,000;
(k) any agreement, contract or commitment relating to capital expenditures or involving future payments currently in excess of $25,000;
(xi) any agreement, arrangement, right, contract or commitment force relating to the disposition or acquisition by Company after the date of assets, properties or any interest this Agreement of assets in any business enterprise outside excess of $25,000 not in the ordinary course of the Company’s business;, or pursuant to which Company has any material ownership interest in any corporation, partnership, joint venture or other business enterprise,
(xiil) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph clause (vih) abovehereof;
(xiiim) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 25,000 or more, other than purchases in the ordinary course of business;
(xivn) any construction contracts;
(xvo) any dealer, distribution, joint marketingmarketing (excluding joint marketing agreements: (i) involving financial obligations or liabilities to the Company; or (ii) that do not involve rights to sell Company Products to end-users), licensing development, content provider, destination site or development merchant agreement;
(p) any agreement pursuant to which the Company has granted or may be obligated to grant in the future, to any party a source-code license or option or other right to use or acquire source-code, including any agreements which provide for source code escrow arrangements;
(q) any sales representative, original equipment manufacturer, value added, remarketer or other agreement for distribution of the Company's products or services or the products or services of any other person or entity;
(r) any agreement pursuant to which the Company has advanced or loaned any amount to any shareholder of the Company or any director, officer, employee or consultant other than business travel advances in the ordinary course of business consistent with past practice;
(s) any settlement agreement entered into since the Company's initial incorporation; or
(xvit) any other agreement, contract or commitment agreement that involves or could result in payments to or by the Company of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) days.
(b) Except for such alleged breaches, violations and defaults. The Company has not, 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 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has has, breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to which it is a party be set forth on Schedule 2.16(a), Schedule 2.14(f) or by which it or its assets or properties are or may be bound Schedule 2.14(k) (any such agreement, contract or commitment, 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) and to the Company's knowledge, is not subject to any material default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Zapworld Com)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the The Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party to nor is it bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization, other than standard offer letters provided to employees (who are not officers of the Company) in the ordinary course of business consistent with past practice, all of which offer letters create “at will” relationships and none of which create any contractual obligation of the Company to the other party thereto upon termination of such relationship (whether in the form of severance or benefit obligation or otherwise);
(vii) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viiii) any fidelity or surety bond or completion bond;
(viiiv) any lease of real or personal property having that involves a value individually remaining obligation in excess of $25,00010,000;
(viii) any agreement of indemnification, guaranty or suretyship;
(ixv) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;,
(xvi) any agreement, contract or commitment relating to capital expenditures or and involving future payments that involves a remaining obligation in excess of $25,00010,000;
(xivii) any agreement, arrangement, right, contract or commitment relating to the leasing, licensing, disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xiiviii) any mortgagesmortgage, indenturesindenture, loans loan or credit agreementsagreement, security agreements agreement or other agreements agreement or instruments instrument relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiiix) any purchase order or contract for the purchase of raw materials or the provision that involves a remaining obligation in excess of services involving $10,000 or more, other than purchases in the ordinary course of business20,000;
(xivx) any construction contracts;
(xvxi) any dealer, distribution, joint marketing, licensing marketing or development agreement;
(xii) 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 person; or
(xvixiii) any other material agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) dayscommitment.
(b) Except for such alleged breaches, violations The Company is in compliance in all material respects with 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 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, in each case in any material respect, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract contract, covenant, instrument, lease, license or commitment listed in Section 3.15(a) of the Company Disclosure Schedule to which it the Company is a party or by which it or its assets or properties are or may be is bound (any such agreement, contract or commitmenteach, a “Company Contract”), nor is the Company, the Stockholders or the Company Principals aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Company Contract is in full force and effect and and, to the knowledge of the Stockholders, is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, obtained or will obtain prior to the Effective Time, Closing all necessary consents, waivers and approvals of parties to any Company Contract as are required thereunder in connection with the Merger and Acquisition for such Company Contracts to remain in effect without modification after the other transactions contemplated hereby and by the Ancillary Agreements, including all date hereof. The Company Contracts requiring such consents, waivers and approvals or waivers necessary to validly transfer are described in Section 3.15(b) of the Company Disclosure Schedule. Following the date hereof and assign all such Contracts subject to the Surviving Corporation (fulfillment of all obligations of the “Requisite Consents”)Company thereunder, the Company will be permitted to exercise all of the Company’s rights under the Company Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which Company would otherwise be required to pay had the transactions contemplated by this Agreement not occurred.
Appears in 1 contract
Sources: Stock Purchase Agreement (American Medical Systems Holdings 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 (a) Section 2.12(aeach a "HTI Contract") of HTI at the Company Schedule sets forth all contracts that are material to the business or operations date of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company ScheduleHTI Disclosure Letter, the Company does not have, HTI is not a party to nor is it bound by:
(ia) any collective bargaining agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iiib) any bonus, deferred compensation, severance, incentive compensation, pension, profit sharing profit-sharing, or retirement plans, or any other employee benefit plans or arrangements;
(ivc) any employment or consulting agreement, contract contract, or commitment with an employee any officer- or individual consultant director-level employee, or salesperson or consulting or sales agreement, contract or commitment with a firm or other organizationmember of HTI's Board of Directors;
(vd) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan right plan, or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually in excess of $25,000;
(viiie) any agreement of indemnification, indemnification or guaranty not entered into in the ordinary course of business other than indemnification agreements between HTI and any of its officers or suretyshipdirectors;
(ixf) any agreement, contract contract, or commitment containing any covenant limiting the freedom of the Company HTI to engage in any line of business or to compete with any person;
(xg) any agreement, contract contract, or commitment relating to capital expenditures or and involving future payments obligations in excess of $25,00010,000 and not cancelable without penalty;
(xih) any agreement, arrangementcontract, right, contract or commitment currently in force relating to the disposition or acquisition of assets, properties or any interest assets not in any business enterprise outside the ordinary course of the Company’s businessbusiness or any ownership interest in any corporation, partnership, joint venture, or other business enterprise;
(xiii) 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, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiij) any purchase order joint marketing or contract for the purchase of raw materials development agreement (excluding agreements with resellers, value added resellers, or the provision of services involving $10,000 or more, other than purchases independent software vendors entered into in the ordinary course of businessbusiness that do not permit such resellers or vendors to modify HTI's software products);
(xivk) any construction contracts;
distribution agreement (xv) identifying any distribution, joint marketing, licensing or development agreementthat contain exclusivity provisions); or
(xvil) any other agreement, contract, or commitment which involves payment by HTI under any such agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 100,000 or more or individually and is not cancelable by the Company without penalty within thirty (30) days.
(b) Except for such alleged breaches. Neither HTI, violations and defaultsnor to HTI's knowledge any other party to a HTI Contract, 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 2.12(b) of the Company Schedule, the Company has not 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 agreement, contract of such HTI Contracts in such a manner as would permit any other party to cancel or commitment to which it is a party or by which it or its assets or properties are or may be bound (terminate any such agreement, contract or commitment, a “HTI Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior would permit any other party to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)seek damages.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Headwaters Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the The Company does not have, or is not a party to nor is it bound by:
(i) any collective bargaining agreementscontract, license or agreement to which the Company is a party (A) with respect to Company Intellectual Property licensed or transferred to any third party or (B) pursuant to which a third party has licensed or transferred any Intellectual Property to the Company, with a value or cost in excess of $25,000;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(viii) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viiv) any fidelity or surety bond or completion bond;
(viiv) any lease of real or personal property having a value individually with fixed annual rental payments in excess of $25,000;
(viiivi) any contract, license or agreement between the Company and any third party wherein or whereby the Company has agreed to, or assumed, any obligation or duty to warrant, indemnify, hold harmless or otherwise assume or incur any obligation or liability with respect to the infringement or misappropriation by the Company or such third party of indemnification, guaranty or suretyshipthe Intellectual Property of any third party;
(ixvii) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xviii) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,000;
(xiix) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s 's business;
(xiix) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit other than trade credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiixi) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 25,000 or more, other than purchases in the ordinary course of business;
(xivxii) any construction contracts;
(xvxiii) any distribution, joint marketing, licensing marketing or development agreement; or
(xvixiv) any other agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) days.
(b) Except for such alleged breaches, violations The Company is in compliance with 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 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract contract, license or commitment to which it is a party or by which it or its assets or properties are or may be is bound (any such agreement, contract contract, license or commitment, a “"Contract”"), and the Company is not aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated effect, and, to the Company pursuant theretoknowledge of the Company, all other parties to each Contract are in compliance with, and have not breached any term of, such Contract. The Company has obtained, obtained or will obtain prior to the Effective TimeClosing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger and or to remain in effect without modification after the other transactions contemplated hereby and by Closing. Following the Ancillary AgreementsEffective Time, including the Company will be permitted to exercise all such consents, approvals or waivers necessary to validly transfer and assign all such of the Company's rights under the Contracts to the Surviving Corporation (same extent the “Requisite Consents”)Company would have been able to had the Merger not occurred and without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company would otherwise be required to pay.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Tut Systems Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the on Company ScheduleSchedule 2.16(a), the Company does not have, is not a party to nor is it bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(vii) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increasedincreased by, or the vesting of benefits of which will be acceleratedaccelerated by, by or which would require the consent of any party thereto as a result of, the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viiii) any fidelity or surety bond or completion bond;
(viiiv) any lease of real or personal property having a value individually in excess of USD $25,00025,000 individually or USD $50,000 in the aggregate;
(viii) any agreement of indemnification, guaranty or suretyship;
(ixv) any agreement, contract or commitment relating to capital expenditures and involving future payments in excess of USD $25,000 individually or USD $50,000 in the aggregate;
(vi) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of the Company's business;
(vii) any licensing agreement or other contract with respect to Intellectual Property Rights;
(viii) any joint venture, partnership, and other contract involving a sharing of profits, losses, costs, or liabilities by the Company with any third party;
(ix) any contract containing covenants that in any covenant limiting way purport to restrict the business activity of the Company or any affiliate or limit the freedom of the Company or any affiliate of the Company to engage in any line of business or to compete with any personthird party;
(x) any agreement, contract power of attorney or commitment relating to capital expenditures other similar agreement or involving future payments in excess grant of $25,000agency;
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties or any interest entered into other than in any business enterprise outside the ordinary course of business that contains or provides for an express undertaking by the Company’s businessCompany to be responsible for consequential damages;
(xii) any mortgagesoral or written warranty, indenturesguaranty, loans or credit agreements, security agreements and or other agreements similar undertaking with respect to product or instruments relating to contractual performance sold or extended by the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or more, Company other than purchases in the ordinary course of business;
(xiv) any construction contracts;
(xv) any distribution, joint marketing, licensing or development agreement; or
(xvixiii) any other agreementamendment, contract supplement, and modification (whether oral or commitment that involves or could result written) in payments to or by respect of any of the Company of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) daysforegoing.
(b) Except for such alleged breachesAll of the Contracts set forth or required to be set forth on Company Schedule 2.16(a) ("Contracts") are valid, violations binding and defaultsenforceable in accordance with their respective terms, subject to laws of general application relating to bankruptcy, insolvency and the relief of debtors and other laws of general application effecting enforcement of creditors' rights generally, rules of law governing specific performance, injunctive relief or other equitable remedies, and events that would constitute a breach, violation or default with the lapse limitations of time, giving of notice, or both, all as noted in Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may public policy; and shall be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder without penalty in accordance with their terms upon consummation of which the Company has knowledge by any party obligated to the Company pursuant theretotransactions contemplated hereby. The Company has obtainedperformed all material obligations required to be performed by it and is not in default in any material respect under or in breach in any material respect of nor in receipt of any claim of default or breach under any Contract set forth or required to be set forth on Company Schedule 2.16(a); no event has occurred which, with the passage of time or will obtain prior the giving of notice or both, would result in a default, breach or event of noncompliance by the Company in any material respect under any such Contract; the Company does not have any present expectation or intention of not fully performing on a timely basis all such obligations required to be performed by the Effective TimeCompany under any Contract set forth or required to be set forth on Company Schedule 2.16(a); no partially-filled or unfilled material
(c) Parent has been supplied with a true and correct copy of each of the written Contracts that are set forth on Company Schedule 2.16(a), together with all necessary consentsamendments, waivers and approvals of parties to any Contract as are required in connection with the Merger and the or other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)changes thereto.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section Part 2.12(a) of the Company Schedule sets forth all contracts that are material Disclosure Letter lists the following written or oral contracts, agreements, commitments and other arrangements to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted a party or required to engage or by which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, or any of its assets is not a party to nor is it bound bybound:
(i) any agreement under which the consequences of a default or termination could have a Material Adverse Effect on the Company;
(ii) any agreement concerning a partnership or joint venture;
(iii) any agreement with any Company Stockholder or any of such stockholder's affiliates (other than the Company) or with any affiliate of the Company;
(iv) any advertising services, e-commerce or other agreement involving the promotion of products and services of third parties by the Company;
(v) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(vi) any agreement obligating the Company to deliver maintenance services or future product enhancements or containing a "most favored nation" pricing clause;
(vii) any agreement obligating the Company to provide source code to any third party for any Company Intellectual Property;
(viii) any agreement granting an exclusive license to any Company Intellectual Property or granting any exclusive distribution rights;
(ix) any agreement relating to the acquisition by the Company of any operating business or the capital stock of any other person;
(x) any agreement requiring the payment to any person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees in the Ordinary Course of Business);
(xi) any collective bargaining agreements;
(iixii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iiixiii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(ivxiv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or any consulting or sales agreement, contract or commitment with a under which any firm or other organizationorganization provides services to the Company;
(vxv) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(vixvi) any fidelity or surety bond or completion bond;
(viixvii) any lease of real or personal property having a value individually in excess of $25,000;
(viiixviii) any agreement of indemnification, guaranty indemnification or suretyshipguaranty;
(ixxix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xxx) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,000;
(xixxi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course Ordinary Course of the Company’s businessBusiness;
(xiixxii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph clause (vixviii) abovehereof;
(xiiixxiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of business;
(xiv) any construction contracts;
(xvxxiv) any distribution, joint marketing, licensing marketing or development agreement;
(xxv) 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,;
(xxvi) any agreement pursuant to which the Company has developed and/or delivered or has received funds from any Governmental Entity to develop and/or deliver any Intellectual Property; or
(xvixxvii) any other agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) days.
(b) Except for The Company has delivered to Parent a correct and complete copy of each written agreement (as amended to date) listed in Part 2.10(a), Part 2.11(q), Part 2.11(r), Part 2.12(a) and Part 2.21(b) of the Company Disclosure Letter and a written summary setting forth the terms and conditions of each oral agreement referred to in such alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with parts of the lapse of time, giving of notice, or bothCompany Disclosure Letter (collectively, all such agreements are referred to as noted the "Contracts"). Except as set forth in Section Part 2.12(b) of the Company ScheduleDisclosure Letter, with respect to each such agreement: (A) the agreement, with respect to the Company has not breachedand, violated or defaulted underto the Company's and the Principal Stockholders' Knowledge, or received notice that it has breachedall other parties thereto, violated or defaulted underis legal, any of the terms or conditions of any agreementvalid, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreementbinding, contract or commitmentenforceable, a “Contract”). Each Contract is and in full force and effect and is not subject to any default thereunder of which in all respects; (B) neither the Company has knowledge by any party obligated nor, to the Company pursuant thereto. The Company Company's or the Principal Stockholders' Knowledge, any other Party is in breach or default, and no event has obtainedoccurred, which with notice or lapse of time would constitute a breach or default, or will obtain prior permit termination, modification, or acceleration, under the agreement; (C) no Party has repudiated any provision of the agreement; and (D) the Company does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms and without resulting in a loss to the Company. Subject to receipt of the consents set forth in Part 6.3(c) of the Company Disclosure Letter, following the Effective Time, the Company will be permitted to exercise all necessary consents, waivers and approvals of parties the Company's rights under such agreements to any Contract as are required in connection with the same extent the Company would have been able to had the Merger not occurred and without the payment of any additional amounts or consideration other transactions contemplated hereby and by than ongoing fees, royalties or payments which the Ancillary Agreements, including all such consents, approvals or waivers necessary Company would otherwise be required to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)pay.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Tibco Software Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Scheduleon Schedule 2.17(a), the Company does not have, is not a party to to, nor is it bound by:
(i) any collective bargaining agreementsagreement under which the consequences of a default or termination would reasonably be expected to have a Material Adverse Effect on the Company;
(ii) any agreements or arrangements that contain agreement between the Company and any severance pay or post-employment liabilities or obligationsshareholder of the Company (other than in their capacity as such);
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangementsagreement containing a "most favored nation" pricing clause granted by the Company;
(iv) any employment agreement granting an exclusive license to any Company Intellectual Property or consulting agreementcreating exclusive distribution rights;
(v) any agreement of indemnification or guaranty other than agreements entered into in the ordinary course of business in connection with the sale of goods or services;
(vi) any employment, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with an individual employee, consultant or salesperson, or with a firm or other organization;
(vvii) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the Ancillary Agreements occurrence of any additional or subsequent events) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viviii) any fidelity or surety bond or completion bond;
(viiix) any lease of real or personal property having a value individually in excess of $25,000;
(viii) any agreement of indemnification, guaranty 50,000 individually or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting $100,000 in the freedom of the Company to engage in any line of business or to compete with any personaggregate;
(x) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,00050,000 individually or $100,000 in the aggregate;
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s business's business consistent with past practices;
(xii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiii) any purchase order or contract for the purchase of raw materials involving in excess of $50,000 individually or the provision of services involving $10,000 or more, other than purchases 100,000 in the ordinary course of businessaggregate;
(xiv) any construction contractsdealer, distribution, joint marketing, joint venture or development agreement, strategic alliance, or any other agreement (noncompete or otherwise) that reasonably could be expected to have the effect of prohibiting or impairing any business practice of the Company, any acquisition of property by the Company, the conduct of business by the Company, or the manufacture, sale, licensing or distribution by the Company of any product, service, Intellectual Property or Intellectual Property Right in any manner, or otherwise limiting the freedom of the Company to engage in any line of business or compete with any Person;
(xv) any distributionsales representative, joint marketingoriginal equipment manufacturer, licensing value added, remarketer, reseller, or development independent software vendor agreement, or other agreement for use or distribution of the Company's products, technology or services; or
(xvi) any other agreement, contract or commitment that involves $50,000 individually or could result $100,000 in payments to or by the Company of $25,000 aggregate or more or and is not cancelable by the Company without penalty within thirty (30) days.
(b) Except for such alleged breachesThe Company has delivered to Parent a correct and complete copy of each written agreement (as amended through the date of this Agreement) listed in Schedule 2.17(a). The Company has not breached, violations and defaultsviolated or defaulted under, and events nor received notice that it has breached, violated or defaulted under, nor has any event occurred that would constitute a breach, violation or default with the lapse of time, the giving of notice, or both, all as noted in Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, under any of the terms or conditions of any agreement, contract or commitment required to which it is a party be set forth in Schedule 2.17(a) or by which it or its assets or properties are or may be bound Schedule 2.16 (any such agreement, contract or commitment, a “"Listed Contract”"). Each Listed Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”).
Appears in 1 contract
Sources: Merger Agreement (Avocent Corp)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) on Exhibit 2.9 of the Company ScheduleExhibit Volume, the Company does not have, Seller is not presently a party to nor is it or bound by:
(i) any collective bargaining agreementsemployment, consulting or sales agreement with any employee, consultant or salesperson of the Seller;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(v) any agreement or plan (includingrelating to employee benefits or compensation, including without limitation any stock option plan, stock appreciation rights plan or stock purchase plan) plan with respect to Equity Interests of the Seller, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viiii) any fidelity or surety bond or completion bond;
(viiiv) any lease of real or personal property having a value individually an annual rental rate in excess of $25,0002,000 individually or $15,000 in the aggregate;
(viii) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xv) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,0002,000 individually or $10,000 in the aggregate;
(xivi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s Seller's business;
(xiivii) any payables, mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit or evidencing any debt or any payable, including guaranties debt or instruments agreement which is secured by any assets of surety referred to in subparagraph (vi) abovethe Seller;
(xiiiviii) any purchase order or contract for the purchase of raw materials or the provision of services involving in excess of $2,000 individually or $10,000 or more, other than purchases in the ordinary course of businessaggregate;
(xivix) any construction contracts;
(x) any dealer, distribution, joint marketing or development agreement or agreements relating to territorial arrangements, sales representation, operating or consulting agreements;
(xi) any remarketer, reseller or other agreement for use or distribution of the Seller's products, technology or services;
(xii) any supplier or third party provider agreements;
(xiii) any joint venture, partnership or other management agreements;
(xiv) any advertising, marketing, telemarketing or promotional agreements; yellow pages ad
(xv) any distributiontax sharing agreement with any other party;
(xvi) any non-compete or other agreements restricting the business in any way;
(xvii) any independent agent or independent contractor agreements;
(xviii) any agreements for the discount of the services or products offered by the Seller; Wireless Services - City of Vicksburg; Culkin Water; ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇; Domains - ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
(xix) any agreements pursuant to which the Seller is obligated to indemnify any party;
(xx) any agreements with any current or former officer, director, employee, consultant or equity holder or any partnership, corporation, joint marketingventure or other entity in which any such person has an interest;
(xxi) any irrevocable right of use or similar agreements;
(xxii) any agreement providing for the purchase of telecommunications minutes, licensing services or development agreementtraffic; or
(xvixxiii) any other agreement, contract or commitment that involves $2,000 individually or could result $20,000 in payments to or by the Company of $25,000 aggregate or more or and is not cancelable by the Company without penalty within thirty (30) calendar days.
(b) Except for such alleged breaches, violations The Seller is in compliance with 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 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract contract, lease, license or commitment to which it is a party or by which it is bound, including those included on Exhibit 2.7 (collectively, the "Contracts"), nor does the Seller have knowledge of any event that would constitute such a material breach, violation or its assets default with the lapse of time, giving of notice or properties are or may be bound (any such agreement, contract or commitment, a “Contract”)both. Each Contract is in full force and effect and is not subject to any material default thereunder thereunder, nor, to the knowledge of which the Company has knowledge by Seller, is any party obligated to the Company Seller pursuant thereto. thereto subject to any material default thereunder.
(c) The Company Seller has obtained, or will obtain prior to the Effective TimeClosing Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all for such Contracts to remain in effect without modification, limitation or alteration after the Surviving Corporation (Closing Date. Following the “Requisite Consents”)Closing Date, the Seller will be permitted to exercise all of its rights under the Contracts without the payment of any additional amounts or consideration other than amounts or consideration which the Seller would otherwise be required to pay had the transactions contemplated by this Agreement not occurred.
Appears in 1 contract
Sources: Asset Purchase Agreement (Xfone Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a2.14(a) of the Company ScheduleDisclosure Letter, the Company Skillscape does not havehave any continuing obligations under, is not a party to nor or is it not bound by:
(i) 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 Skillscape 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 obligationsobligations or is otherwise required by statute or case law to provide any of the foregoing;
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(v) any agreement or plan (plan, including, without limitation, any stock share option plan, stock share appreciation rights plan or stock 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 transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement, except as provided herein;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease or license of real or personal property having a value annual lease payments individually in excess of $25,000US$3,000;
(viii) any agreement of indemnification, guaranty indemnification or suretyshipguaranty;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Skillscape or its affiliates to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,000US$5,000;
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties material assets or any interest in any business enterprise outside the ordinary course of the Company’s Skillscape's business;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph clause (viviii) abovehereof;
(xiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or morematerials, other than purchases purchase orders made in the ordinary course of businessbusiness and involving not more than US$5,000;
(xiv) any construction contracts;
(xv) any distribution, joint marketing, licensing marketing or development agreement;
(xvi) any agreement, contract or commitment with any customer which accounted for, or is expected to account during Skillscape's current fiscal year, for more than 5% of Skillscape's revenue or trade payables; or
(xvixvii) any other agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 5,000 or more or is that cannot cancelable by the Company be canceled 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, all as noted in Section 2.12(b2.14(b) of the Company ScheduleDisclosure Letter, the Company Skillscape is in compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of (i) any agreement, contract or commitment required to be set forth in Section 2.14(a) of the Disclosure Letter, or (ii) any other agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be is bound (any such agreement, contract or commitmentcommitment referenced in the preceding clauses (i) and (ii), a “Contract”"CONTRACT"), nor is either Shareholder aware of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Each Contract is in full force and effect and and, except as otherwise disclosed in Section 2.14(b) of the Disclosure Letter, is not subject to any default thereunder of which the Company has knowledge Management Shareholders are aware by any party obligated to the Company Skillscape pursuant thereto. The Company Each of the Contracts (i) constitutes a legal, valid and binding obligation of Skillscape in accordance with its terms and (ii) to the knowledge of each of the Management Shareholders, constitutes a legal, valid and binding obligation of each of the other parties thereto, enforceable against such other parties thereto in accordance with its terms. There has been no cancellation, termination, limitation or modification or any notice of cancellation, termination, limitation or modification of any such Contract and, to the knowledge of any of the Management Shareholders, there is no event which could reasonably be expected to result in a cancellation, termination, limitation or modification of any such Contract. Skillscape has obtained, or will obtain prior to the Effective TimeExchange Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with consummation of the Merger and Share Exchange or to remain in effect without modification after the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)Share Exchange.
Appears in 1 contract
Sources: Share Purchase Agreement (Smartforce Public LTD Co)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which Except as contemplated by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party to nor is it to, or bound by:
(i) any collective bargaining agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonusemployment, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment contractor or consulting agreement, contract or commitment with an employee or individual consultant consultant, contractor, or salesperson salesperson, any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any employee, or any contractor, consulting or sales agreement, contract contract, or commitment with a firm or other organization;
(vii) any agreement or plan (includingplan, including any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viiii) any fidelity or surety bond or completion bond;
(viiiv) any lease of real or personal property having a value individually involving payments in excess of $25,00010,000 individually or $20,000 in the aggregate;
(viiiv) any agreement of indemnificationContracts between the Company and any other person wherein or whereby the Company has agreed to, or assumed, any obligation or duty to warrant, indemnify, reimburse, hold harmless, guaranty or suretyshipotherwise assume or incur any similar obligation or liability or provide a right of rescission with respect to the infringement or misappropriation by the Company or such other person of the Intellectual Property Rights of any person other than the Company, other than (i) the Company’s standard customer warranties, copies of which have been made available to Buyer (ii) the public or open source technology listed in Section 4.15(s) of the Company Disclosure Schedule, and (iii) other non-exclusive licenses and related agreements with respect thereto of the Company Products to end users pursuant to written agreements that have been entered into in the ordinary course of business that do not materially differ in substance from the Company’s standard form(s) of end user license including attachments (which is or are included in Section 4.15(l) of the Company Disclosure Schedule);
(ixvi) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment Contract relating to capital expenditures or by the Company and involving future payments in excess of $25,00010,000 individually or $20,000 in the aggregate;
(xivii) any agreement, arrangement, right, contract or commitment Contract relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xiiviii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments Contract relating to the borrowing of money or extension of credit, including guaranties or instruments credit other than accounts receivable and payable in the ordinary course of surety referred to in subparagraph (vi) abovebusiness;
(xiiiix) any purchase order or contract for the purchase of raw materials or the provision involving in excess of services involving $10,000 individually or more, other than purchases $20,000 in the ordinary course of businessaggregate;
(xivx) any construction contracts;
(xv) any distributiondealer, joint marketing, licensing strategic alliance, affiliate or development agreement;
(xi) any Contract to alter the Company’s interest in any Subsidiary, corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(xii) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for use or distribution of the Company Products; or
(xvixiii) any other agreement, contract or commitment Contract that involves $10,000 individually or could result $20,000 in payments to or by the Company of $25,000 aggregate or more or and is not cancelable by the Company without penalty within thirty (30) 30 days.
(b) Except for such alleged breachesEach Material Contract to which the Company is a party or any of its properties or assets (whether tangible or intangible) is subject is a valid and binding agreement of the Company, violations and defaultsenforceable against each of the parties thereto in accordance with its terms, subject to the Bankruptcy Exception, and events that would constitute a breachis in full force and effect with respect to the Company and, violation or default with to the lapse of time, giving of notice, or both, all as noted in Section 2.12(b) Knowledge of the Shareholders, any other party thereto. The Company Schedule, the Company is in compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreementsuch Contract, contract or commitment nor to which it the Knowledge of the Shareholders is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant theretoto any such Contract subject to any breach, violation or default thereunder, nor do the Shareholders have Knowledge of 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 any such other party. True and complete copies of each Contract disclosed in the Company Disclosure Schedule or required to be disclosed pursuant to this Section 4.16 (each a “Material Contract” and collectively, the “Material Contracts”) have been delivered to Buyer.
(c) The Company has obtained, or will obtain fulfilled all material obligations required pursuant to each Contract to have been performed by the Company prior to the Effective Timedate hereof, and, without giving effect to the Stock Purchase, the Company has no reason to believe it will be unable to fulfill, when due, all necessary consents, waivers and approvals of parties its obligations under the Material Contracts that remain to any Contract as are required in connection with be performed after the Merger and date hereof.
(d) All outstanding indebtedness of the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)Company may be prepaid without penalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company ScheduleShuttle Disclosure Letter, the Company each of Shuttle and its subsidiaries does not havehave continuing obligations under, is not a party to nor is it bound by:
(i) any collective bargaining agreements;,
(ii) any agreements or arrangements that contain any severance pay or pay, post-employment liabilities or obligations;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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;organization where the amount payable by Shuttle or the relevant subsidiary is reasonably expected to exceed $50,000 or its equivalent in applicable foreign currency,
(v) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;by this Agreement, except as provided herein,
(vi) any fidelity or surety bond or completion bond;,
(vii) any lease of real or personal property having a value annual lease payments individually in excess of $25,000;,
(viii) any agreement of indemnification, warranty or guaranty or suretyship;other than in the ordinary course of business,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company Shuttle to engage in any line of business or to compete with any person;,
(x) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,000;50,000 in the aggregate,
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties material assets or any interest in any business enterprise outside the ordinary course of the Company’s Shuttle's business or any subsidiary's business;,
(xii) any mortgages, indenturesdebentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;,
(xiii) any purchase order distribution, joint marketing or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of business;development agreement,
(xiv) any construction contracts;agreement, contract or commitment with any customer or vendor which, during the last two financial years of Shuttle ended on June 30, 1998, accounted, or is expected to account during Shuttle's current financial year, for more than 5% of Shuttle's revenue or trade payables, as applicable, or
(xv) any distribution, joint marketing, licensing or development agreement; or
(xvi) any other agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 75,000 or more or is not cancelable by the Company cancellable without penalty within thirty sixty (3060) days.
(b) Except for such any alleged breaches, violations and defaults, and events that would constitute a breach, violation or default with the lapse of time, giving of notice, or both, all as noted in Section 2.12(b) of the Company ScheduleShuttle Disclosure Letter, the Company neither Shuttle nor any of its subsidiaries has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is set forth in Section 2.11 or Section 2.12(a) of the Shuttle Disclosure Letter (a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”SHUTTLE CONTRACT). Each Shuttle Contract is in full force and effect and and, except as otherwise disclosed in Section 2.3(b) or 2.12(b) of the Shuttle Disclosure Letter, is not subject to any default thereunder of which the Company has knowledge any Exchanging Shareholder is aware by any party obligated to the Company Shuttle or any subsidiary 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 as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”).
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the The Company Schedule sets forth all contracts that and its Subsidiaries are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party to to, nor is it are the Company and its Subsidiaries or any of their assets or properties bound by:
(ia) any collective bargaining agreements;,
(iib) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;,
(iiic) any bonusemployment, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment severance or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;,
(vd) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase planplan (other than the Plans and the Change of Control Letters disclosed in Section 2.5(ii) of the Company Disclosure Schedules), any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;by this Agreement,
(vie) any fidelity or surety bond or completion bond;,
(viif) any lease of real or personal property having a value individually in excess of $25,000;50,000,
(viiig) any agreement agreement, contract or commitment of indemnification, guaranty guaranty, support, assumption or suretyship;endorsement of, or any similar commitment or understanding with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other person or entity,
(ixh) any agreement, contract or commitment containing any covenant limiting the freedom of the Company or a Subsidiary to engage in any line of business or to compete with any person;, or any confidentiality, secrecy or non-disclosure agreement, contract or commitment imposing confidentiality, secrecy or non-disclosure obligations on the Company,
(xi) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,000;50,000 per year,
(xij) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s business;,
(xiik) any mortgages, indentures, loans or credit agreements, security agreements agreements, guaranties or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties credit or instruments any leasing transaction of surety referred the type required to be capitalized in subparagraph (vi) above;accordance with GAAP,
(xiiil) any purchase order or contract for the purchase of raw materials or the provision of services involving to pay $10,000 50,000 or more, other than purchases purchase orders for TSOPs, flex-frames, solder, solvents, printed wiring boards, and other items purchased in the ordinary course of business;business consistent with past practice,
(xivm) any real property development or construction contracts;agreements, contracts or commitments,
(xvn) any distribution, joint marketing, licensing marketing or development agreement; or, contract or commitment,
(xvio) any agreement, contract or commitment to indemnify, hold harmless or defend any other person with respect to any assertion of personal injury, damage to property or Intellectual Property infringement, misappropriation or violation or warranting the lack thereof,
(p) any other agreement, contract or commitment not referred to above that involves payment of, or could result in payments an obligation to or by the Company of pay, $25,000 50,000 per year or more or and is not cancelable by the Company without penalty within thirty (30) days., or
(bq) 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 Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any material agreement, contract or commitment to which it is a party or by which it with any person with whom the Company or its assets Subsidiaries does not deal at arm’s length within the meaning of the Code other than agreements, contracts or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is commitments provided for in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)Sections 2.12(b) through 2.12(d) above.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a2.14(a) of the Company ScheduleDisclosure Schedule (specifying the appropriate paragraph, provided, that the failure to properly identify the correct paragraph or each paragraph that may be applicable, alone, shall not affect the accuracy or correctness of this representation or warranty), the Company does not have, is not a party to to, nor is it bound by:
(i) any collective bargaining agreements;
(iiA) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonusemployment, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment contractor or consulting agreement, contract Contract or commitment with an employee Employee or individual consultant salesperson, (B) any agreement, Contract or salesperson commitment to grant any severance or termination pay (in cash or otherwise) to any Employee, or (C) any consulting or sales agreement, contract contract, or commitment with a firm or other organization;
(vii) any agreement or plan (includingplan, including any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated or may be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viiii) any fidelity or surety bond or completion bond;
(viiiv) any lease of real or personal property having a value individually requiring future payments in excess of $25,0005,000 annually or $50,000 in the aggregate;
(v) any Lease Agreements;
(vi) any agreement of indemnification or guaranty of performance, except for indemnities that do not materially differ in substance from the indemnification provisions that are typical and in the ordinary course of business of companies in the same industry as the Company;
(vii) any Contract relating to capital expenditures and requiring future payments in excess of $25,000 in the aggregate;
(viii) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment relating to capital expenditures or involving future payments in excess of $25,000;
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s businessenterprise;
(xiiix) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiix) any purchase order or contract for the purchase of raw materials involving payments in excess of $15,000 individually or the provision of services involving $10,000 or more, other than purchases 50,000 in the ordinary course of businessaggregate;
(xivxi) any construction contracts;
(xvxii) any hedging, swap, derivative, International Swaps and Derivatives Association or similar Contract;
(xiii) any dealer, distribution, joint marketing, licensing strategic alliance, affiliate or development agreement;
(xiv) 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;
(xv) any joint venture or joint development arrangement;
(xvi) any Contract pursuant to which the Company or any of its subsidiaries is bound to or has committed to provide any product or service to any third party on a most favored nation (MFN) basis or similar terms;
(xvii) any nondisclosure, confidentiality or similar agreement, other than nondisclosure agreements entered into in the ordinary course of business or non-disclosure or confidentiality provisions contained in Contracts otherwise disclosed in Section 2.14(a) of the Disclosure Schedule;
(xviii) 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
(xvixix) any other agreement, contract or commitment that involves $15,000 individually or could result $50,000 in payments to or by the Company of $25,000 aggregate or more or and is not cancelable by the Company without penalty within thirty (30) days.
(b) Except The Company has delivered or made available to Parent true and complete copies of each Contract required to be disclosed pursuant to Section 2.2, Sections 2.13(c), 2.13(g), 2.13(h) (including, for such alleged breachesthe avoidance of doubt, violations each Contract entered into on a Standard Form Agreement), 2.13(j), 2.13(o), Section 2.14 and defaultsthe Lease Agreements (each a “Material Contract” and collectively, the “Material Contracts”) and each of the other documents listed on the Disclosure Schedule.
(c) Each Material Contract to which the Company is a party or any of its properties or assets (whether tangible or intangible) is subject is a valid and binding agreement of the Company, and, to the Knowledge of the Company, each other party thereto, enforceable against the Company, and, to the Knowledge of the Company, each other party thereto, in accordance with its terms, and events that would constitute a breachis in full force and effect with respect to the Company and, violation to the Knowledge of the Company, each other party thereto, subject to (i) Laws of general application relating to bankruptcy, insolvency fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or default with the lapse affecting creditors’ rights generally, and (ii) general principles of time, giving of notice, or both, all equity. Except as noted set forth in Section 2.12(b2.14(c) of the Company Disclosure Schedule, the Company is in compliance in all material respects with and has not materially breached, violated or defaulted under, or received notice that it has materially breached, violated or defaulted under, any of the terms or conditions of any agreementMaterial Contract, contract or commitment nor to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder the Knowledge of which the Company has knowledge by is any party obligated to the Company pursuant theretoto 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. As of the date hereof, other than in connection herewith, there are no new Contracts being actively negotiated that would be required to be listed in Section 2.14(a).
(d) The Company has obtained, or will obtain prior fulfilled all material obligations required to have been performed by the Effective TimeCompany pursuant to each Material Contract.
(e) Except as set forth in Section 2.14(e) of the Disclosure Schedule, all necessary consents, waivers and approvals outstanding Indebtedness of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)Company may be prepaid without penalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Scheduleshown on Schedule 3.11 or any other Schedule delivered by CPI hereunder, the Company does not have, CPI is not a party to nor is it bound byor liable in connection with and has not made or granted any oral or written:
(a) employment agreement or profit-sharing, bonus, incentive, deferred compensation, stock option or purchase, severance pay, employee benefit or similar plan or arrangement;
(b) note, loan, credit, security or guaranty agreement or other obligation relating to the borrowing of money;
(c) license agreement, or sales representative, distributor, franchise, advertising or property management agreement;
(d) agreement for the future purchase by CPI of any material, equipment, services or supplies in an amount in excess of $5,000 in any instance or $25,000 in the aggregate;
(e) agreement for the future sale by CPI of any materials, equipment, services or supplies in an amount in excess of $5,000 in any instance or $25,000 in the aggregate;
(f) insurance or indemnity contract, bank account and other depositary arrangement (including the names of persons authorized to draw thereon) or power of attorney;
(g) agreement, not elsewhere specifically disclosed pursuant to this Agreement, involving, or providing any benefit to, any officer, director, employee or stockholder of CPI;
(h) agreement or arrangement for the sale of any of its assets or the grant of any preferential rights to purchase any of its assets, property or rights or requiring the consent of any party to the transfer and assignment of such assets, property or rights;
(i) any collective bargaining agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonuscontracts, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(v) any agreement or plan (including, any stock option plan, stock appreciation rights plan or stock purchase plan) any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually in excess of $25,000;
(viii) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment relating to capital expenditures or involving future payments in excess of $25,000;
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements arrangements imposing a non-competition, non-solicitation or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;similar obligation on CPI; and
(xiiij) any purchase order other material agreement whether or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases not in the ordinary course of business;
(xiv) . No third party has given notice to CPI of any construction contracts;
(xv) any distributionclaim, joint marketing, licensing dispute or development agreement; or
(xvi) any other agreement, contract or commitment that involves or could result in payments controversy with respect to or by the Company of $25,000 or more or is not cancelable by the Company 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, all as noted in Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms contracts listed on Schedule 3.11, nor has CPI or conditions ILCT received notice or warning of alleged nonperformance, delay in delivery or other noncompliance by CPI with respect to its obligations under any of such contracts, nor, to the best knowledge of CPI and ILCT, are there any facts indicating that any of such contracts may be totally or partially terminated or suspended by the other parties thereto, or that CPI is in default of any agreement, contract or commitment to of its obligations thereunder. CPI enjoys peaceful and undisturbed possession under all leases under which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)operates.
Appears in 1 contract
Sources: Asset Purchase Agreement (Applied Science & Technology Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(aor excepted from (by virtue of the specific exclusions contained in Sections 2.12(g) or 2.12(h) of the Company Disclosure Schedule) Sections 2.12(g) and 2.12(h) of the Disclosure Schedule, or as set forth in Section 2.13(a) of the Disclosure Schedule, the Company does not have, is not a party to nor is it bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(vii) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viiii) any fidelity or surety bond or completion bond;
(viiiv) any lease of real or personal property having a value individually in excess of $25,00010,000 individually or $50,000 in the aggregate;
(viii) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xv) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,00010,000 individually or $50,000 in the aggregate;
(xivi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s 's business;
(xiivii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiiviii) any purchase order or contract for the purchase of raw materials or the provision involving in excess of services involving $10,000 individually or more, other than purchases $50,000 in the ordinary course of businessaggregate;
(xivix) any construction contracts;
(xvx) any dealer, distribution, joint marketing, licensing marketing or development agreement;
(xi) 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; or
(xvixii) any other agreement, contract or commitment that involves $10,000 individually or could result $50,000 in payments to or by the Company of $25,000 aggregate or more or and is not cancelable by the Company 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, all as noted in Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”).
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Except for any Benefit Plan, this Agreement, the Related Agreements and the Contracts specifically identified on Section 2.12(a) 3.12 of the Disclosure Schedule, as of the Agreement Date, none of the Company Schedule sets forth all contracts that are material to nor any of its Subsidiaries is a party to, bound by or uses the business or operations benefits of any of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material following Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party to nor is it bound by:
(i) any collective bargaining agreementsContract involving aggregate consideration in excess of $250,000 payable by the Company or any Subsidiary and which, in each case, cannot be cancelled by the Company or any Subsidiary without penalty or without more than 90 days’ notice;
(ii) any agreements Contract that requires the Company or arrangements any Subsidiary to purchase its total requirements of any product or service from a third party or that contain any severance pay “take or post-employment liabilities or obligationspay” provisions;
(iii) any bonus, deferred compensation, pension, profit sharing Contract that provides for the indemnification by the Company or retirement plansany Subsidiary of any Person, or the assumption of any Tax, environmental or other employee benefit plans or arrangementsLiability of any Person;
(iv) any employment Contract that relates to the acquisition or consulting agreementdisposition of any business, contract a material amount of stock or commitment with an employee assets of any other Person or individual consultant any real property (whether by merger, sale of stock, sale of assets or salesperson or consulting or sales agreement, contract or commitment with a firm or other organizationotherwise) in the past five (5) years;
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which the Company or any agreement or plan (including, any stock option plan, stock appreciation rights plan or stock purchase plan) any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebySubsidiary is a party;
(vi) (A) any fidelity form of employment, contractor or surety bond consulting Contract with any Employee, consultant or completion bondindependent contractor and any individual agreements that materially deviates from the applicable form; (B) any Contract to grant any severance, change of control payments, retention bonus, or termination pay (in cash or otherwise) to any Employee; (C) each employment agreement or offer letter that is not immediately terminable at-will by the Company or any Subsidiary without advance notice, severance, or other cost or liability, and which provide for annual compensation in excess of $250,000; (D) any form bonus or commission plan, or any bonus agreements or commission agreements with any Employee, and the schedule of bonus or commission commitments made to Employees; or (E) any separation agreement, settlement agreement with any Employee or other Person, as well as any settlement agreement, consent decree, or other similar agreement with any Governmental Entity, (1) pursuant to which claims for harassment or discrimination were released; or (2) under which the Company or any of its Subsidiaries has any outstanding Liability;
(vii) any lease of real or personal property having a value individually in excess of $25,000;
(viii) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(x) any agreement, contract or commitment relating to capital expenditures or involving future payments in excess of $25,000;
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of creditcredit (other than any Contract related to (x) intercompany Indebtedness between or among the Acquired Companies, including guaranties or instruments (y) any accounts receivable incurred in the Ordinary Course of surety referred Business;
(viii) any Contract with any Governmental Entity to in subparagraph which the Company or any Subsidiary is a party;
(viix) aboveany Contract pursuant to which the Company or any of its Subsidiaries is bound to or has committed to provide any product or service to any third party on a most favored nation basis or similar terms;
(x) any Contract to which the Company or any Subsidiary is a party that provide for any joint venture, partnership or similar arrangement by the Company;
(xi) any Contract between or among the Company or any Subsidiary, on the one hand, and any Affiliates (other than the Company or any such Subsidiary), on the other hand, that will not be terminated effective as of the Closing Date (other than employment, incentive, compensatory and similar agreements, and Charter Documents);
(xii) all collective bargaining agreements or Contracts with any Union to which the Company or any Subsidiary is a party;
(xiii) any purchase order Contract or contract for plan, any of the purchase benefits of raw materials which shall become payable, be increased, or the provision vesting of services involving $10,000 or morebenefits of which shall be accelerated, other than purchases in as a result of the ordinary course occurrence of businessany of the transactions contemplated by this Agreement;
(xiv) any construction contractsAffiliated Professional Entity Agreement;
(xv) any distribution, joint marketing, licensing or development agreement; orContract with a Top Supplier;
(xvi) any other agreementContracts with the top ten (10) Company Payment Programs, contract or commitment that involves or could result in payments to or as measured by the Company net revenue under such Contracts for the twelve (12)-month period ending December 31, 2021;
(xvii) any Contract required to be disclosed on Section 3.9 of the Disclosure Schedule; and
(xviii) any Contract or other arrangement to settle any Legal Proceeding or to settle any threatened or reasonably anticipated Legal Proceeding, in each case, which involves payment of, or an ongoing obligation to pay, more than $25,000 100,000 or more or is not cancelable by that imposes any material obligations on the Company without penalty within thirty (30) daysthat will continue after the Closing.
(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, all as noted in Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior made available correct and complete copies of each Contract required to the Effective Time, all necessary consents, waivers be disclosed pursuant to Sections 3.9 and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)3.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which Except as required by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consentapplicable law, approval or waiver contemplated by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Scheduleon Schedule 2.13, the Company does not have, is not a party to nor to, and is it not bound by:
(ia) any collective bargaining agreements;
(iib) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iiic) any stock option or stock purchase plan or arrangement (other than the Option Plan), stock appreciation, bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(ivd) any agreement, contract, or commitment relating to the disposition or acquisition of material assets or any interest in any business enterprise;
(e) any employment or consulting agreement, contract or commitment agreement with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with under which a firm or other organizationorganization provides services to the Company not terminable by the Company on thirty days notice without liability;
(vf) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(vig) any fidelity or surety bond or completion bond;
(viih) any agreement or group of related agreements for the lease of real or personal property having a value individually in excess of $25,00035,000 to or from any entity;
(viiii) any agreement of indemnification, guaranty indemnification or suretyshipguaranty;
(ixj) any agreement, contract or commitment agreement containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any personperson or entity;
(xk) any agreement, contract or commitment agreement relating to the purchase of materials or capital expenditures or and involving future payments not incurred in excess the ordinary and usual course of $25,000business, consistent with past practice;
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xiil) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by the Company or extension of credit, including guaranties or instruments of surety referred credit to in subparagraph (vi) abovethe Company;
(xiiim) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of businessagreement concerning confidentiality;
(xivn) any construction contracts;
(xvo) any distribution, joint marketing, licensing marketing or development agreement;
(p) any agreement pursuant to which the Company has granted or may grant in the future, to any party a source-code license or option or other right to use or acquire source-code; or
(xviq) to the extent not reported on the Company Balance Sheet, any other agreement, contract or commitment agreement that involves or could result in payments to or payment by the Company not incurred in the ordinary and usual course of $25,000 business, consistent with past practice or more or which is not cancelable by the Company cancellable 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, all as noted in Section 2.12(b) of the Company Schedule, the . The Company has not breached, violated violated, or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to which it is a party be set forth on Schedule 2.12(c), Schedule 2.12(d), Schedule 2.12(e), Schedule 2.12(f), or by which it or its assets or properties are or may be bound Schedule 2.13 (any such agreement, contract or commitment, a “"Contract”"). Each Contract is in full force and effect and and, except as otherwise disclosed in Schedule 2.13, is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”).
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Adept Technology Inc)
Agreements, Contracts and Commitments. (a) Section 2.12(aSchedule 4.18(a) hereto sets forth a complete and accurate list of (A) each Company Contract providing for payments (present or future) to the Company in excess of $25,000 in the aggregate, under which or in respect of which the Company presently has any liability or obligation of any nature whatsoever (absolute, contingent or otherwise) in excess of $25,000, or that otherwise is material to the businesses, operations, assets or condition (financial or otherwise) of the Company Schedule sets forth all contracts that are material to the business or operations and (B) without limitation of clause (A), each of the following Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby Contracts (collectively, the “Material Company Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, is not a party to nor is it bound by:):
(i) any collective bargaining agreementsmortgage, indenture, note, installment obligation or other instrument, agreement or arrangement for or relating to any borrowing of money from the Company by any officer, director, stockholder or holder of derivative securities of the Company (each such person, an “Insider”);
(ii) any agreements mortgage, indenture, note, installment obligation or arrangements that contain other instrument, agreement or arrangement for or relating to any severance pay or post-employment liabilities or obligationsborrowing of money from an Insider by the Company;
(iii) any bonusguaranty, deferred compensation, pension, profit sharing direct or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(v) any agreement or plan (including, any stock option plan, stock appreciation rights plan or stock purchase plan) any of the benefits of which will be increased, or the vesting of benefits of which will be acceleratedindirect, by the occurrence of Company, a Subsidiary or any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually in excess of $25,000;
(viii) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom Insider of the Company to engage in of any line of business obligation for borrowings, or to compete with any person;
(x) any agreementotherwise, contract or commitment relating to capital expenditures or involving future payments in excess of $25,000;
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiii) any purchase order or contract excluding endorsements made for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases collection in the ordinary course of business;
(xiviv) any construction contractsCompany Contract of employment or management;
(xvv) any distributionCompany Contract made other than in the ordinary course of business or (i) providing for the grant of any preferential rights to purchase or lease any asset of the Company or (ii) providing for any right (exclusive or non-exclusive) to sell or distribute, joint marketingor otherwise relating to the sale or distribution of, licensing any product or development agreement; orservice of the Company;
(xvivi) any obligation to register any shares of the capital stock or other agreementsecurities of the Company with any Governmental Entity;
(vii) any obligation to make payments, contract contingent or commitment that involves otherwise, arising out of the prior acquisition of the business, assets or could result in payments to stock of other Persons;
(viii) any collective bargaining agreement with any labor union;
(ix) any lease or similar arrangement for the use by the Company of real property or personal property (other than any lease of vehicles, office equipment or operating equipment made in the ordinary course of business where the annual lease payments are less than $25,000 or more or is not cancelable by 10,000);
(x) any Company Contract to which any Insider of the Company without penalty within thirty is a party; and
(30xi) daysany offer or proposal which, if accepted, would constitute any of the foregoing.
(b) Except for such alleged breachesEach Material Company Contract was entered into at arms’ length and in the ordinary course, violations is in full force and defaultseffect and, and events that would constitute a breach, violation or default with to the lapse of time, giving of notice, or both, all as noted in Section 2.12(b) knowledge of the Company Scheduleand the Members, is valid and binding upon and enforceable against each of the parties thereto (except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by principles governing the availability of equitable remedies), except where same has not had and would not reasonably be expected to have a Material Adverse Effect. To the knowledge of the Company has not breachedand the Members, violated no other party to a Material Company Contract is the subject of a bankruptcy or defaulted insolvency proceeding. True, correct and complete copies of all Material Company Contracts and offers and proposals, which, if accepted, would constitute Material Company Contracts (or written summaries in the case of oral Material Company Contracts or oral offers and proposals, which if accepted, would constitute Material Company Contracts), and of all outstanding offers and proposals of the Company have been heretofore delivered to Parent or Parent’s counsel.
(c) Except as set forth in Schedule 4.18(c), neither the Company nor, to the knowledge of the Company and the Members, any other party thereto is in breach of or in default under, and no event has occurred which with notice or received notice that it has breached, violated lapse of time or defaulted both would become a breach of or default under, any of the terms or conditions Material Company Contract, and no party to any Material Company Contract has given any written notice of any agreementclaim of any such breach, contract default or commitment event, which, individually or in the aggregate, are reasonably likely to have a Material Adverse Effect on the Company. Each Material Company Contract to which it the Company is a party or by which it or is bound that has not expired by its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract terms is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)effect.
Appears in 1 contract
Sources: Merger Agreement (Global Services Partners Acquisition Corp.)
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which Except as required by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consentapplicable law, approval or waiver contemplated by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Scheduleon Schedule 3.13, the Company does not have, is not a party to nor to, and is it not bound by:
(ia) any collective bargaining agreements;
(iib) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iiic) any stock option or stock purchase plan or arrangement, stock appreciation, bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(ivd) any agreement, contract, or commitment relating to the disposition or acquisition of material assets or any interest in any business enterprise;
(e) any employment or consulting agreement, contract or commitment agreement with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with under which a firm or other organizationorganization provides services to the Company not terminable by the Company on thirty (30) days notice without liability;
(vf) any agreement or plan (includingplan, including any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(vig) any fidelity or surety bond or completion bond;
(viih) except as listed on Schedule 3.13(h), any agreement or group of related agreements for the lease of real or personal property having a value individually in excess of Ten Thousand Dollars ($25,00010,000) to or from any Person;
(viiii) any agreement of indemnification, guaranty indemnification or suretyshipguaranty;
(ixj) any agreement, contract or commitment agreement containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any personPerson;
(xk) any agreement, contract or commitment agreement relating to the purchase of materials or capital expenditures or and involving future payments not incurred in excess the ordinary and usual course of $25,000business, consistent with past practice;
(xil) any agreementexcept as listed on Schedule 3.13(l), arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by the Company or extension of credit, including guaranties or instruments of surety referred credit to in subparagraph (vi) abovethe Company;
(xiiim) except as listed on Schedule 3.13(m), any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or more, other than purchases in the ordinary course of businessagreement concerning confidentiality;
(xivn) any construction contracts;
(xvo) any distribution, joint marketing, licensing marketing or development agreement;
(p) any agreement pursuant to which the Company has granted or may grant in the future, to any party a source-code license or option or other right to use or acquire source-code; or
(xviq) to the extent not reported on the Company Balance Sheet, any other agreement, contract or commitment agreement that involves or could result in payments to or payment by the Company not incurred in the ordinary and usual course of $25,000 business, consistent with past practice or more or which is not cancelable by the Company 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, all as noted in Section 2.12(b) of the Company Schedule, the . The Company has not breached, violated violated, or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment required to which it is a party be set forth on Schedule 3.12(c), Schedule 3.12(d), Schedule 3.12(e), Schedule 3.12(f), or by which it or its assets or properties are or may be bound Schedule 3.13 (any such agreement, contract or commitmentcommitment identified on any of the foregoing Schedules, a “"Contract”"). Each Contract is in full force and effect and and, except as otherwise disclosed in Schedule 3.13, is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”).
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) 2.16 of the Company Schedule, Disclosure Schedule (specifying the appropriate paragraph):
(a) neither the Company does not have, nor any of its Subsidiaries is not a party to to, nor is it bound by:
(i) any collective bargaining agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonusemployment, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment contractor or consulting agreement, contract or commitment with an employee or individual consultant consultant, contractor, or salesperson salesperson, any agreement, contract or commitment to grant any severance or termination pay (in cash or otherwise) to any employee, or any contractor, consulting or sales agreement, contract contract, or commitment with a firm or other organization;
(vii) any agreement or plan (includingplan, including any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement;
(viiii) any fidelity or surety bond or completion bond;
(viiiv) any lease of real or personal property having a value individually in excess of $25,00010,000 individually or $50,000 in the aggregate;
(viiiv) any agreement of indemnification, guaranty indemnification or suretyshipguaranty;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xvi) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,00050,000 individually or $100,000 in the aggregate;
(xivii) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise outside the ordinary course of the Company’s business;
(xiiviii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiiiix) any purchase order or contract for the purchase of raw materials or the provision involving in excess of services involving $10,000 individually or more, other than purchases $50,000 in the ordinary course of businessaggregate;
(xivx) any construction contracts;
(xvxi) any dealer, distribution, joint marketing, licensing strategic alliance, affiliate or development agreement (including without limitation any statement of work, special project request, purchase order, annex or amendment to any such agreement);
(xii) any agreement, contract or commitment to alter the Company’s interest in any Subsidiary, corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(xiii) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other agreement for use or distribution of the products, technology or services of the Company or any of its Subsidiaries; or
(xvixiv) any other agreement, contract or commitment that involves $10,000 individually or could result $50,000 in payments to or by the Company of $25,000 aggregate or more or and is not cancelable by the Company without penalty within thirty (30) 30 days.
(b) Except for such alleged breaches, violations Each Contract to which the Company or any of its Subsidiaries is a party or any of their respective properties or assets (whether tangible or intangible) is subject is a valid 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 2.12(b) binding agreement of the Company Scheduleor its Subsidiaries, as the case may be, enforceable against each of the parties thereto in accordance with its terms, and is in full force and effect with respect to the Company has or the applicable Subsidiary and, to the Knowledge of the Company and the Principal Stockholders, any other party thereto. The Company and each of its Subsidiaries are in compliance with and have not breached, violated or defaulted under, or received notice that it has they have breached, violated or defaulted under, any of the terms or conditions of any agreementsuch Contract, contract or commitment nor to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder the Knowledge of which the Company has knowledge by or the Principal Stockholders is any party obligated to the Company or any of its Subsidiaries pursuant theretoto any such Contract subject to any breach, violation or default thereunder, nor does the Company or any Principal Stockholder have Knowledge of any event that with the lapse of time, giving of notice or both would constitute such a breach, violation or default by the Company, its Subsidiaries or any such other party. True and complete copies of each Contract disclosed in the Disclosure Schedule or required to be disclosed pursuant to this Section 2.16 (each a “Material Contract” and collectively, the “Material Contracts”) have been delivered to Parent.
(c) The Company has obtained, or will obtain and each of its Subsidiaries have fulfilled all material obligations required pursuant to each Contract to have been performed by the Company prior to the Effective Timedate hereof, and to the Knowledge of the Company, without giving effect to the Merger, the Company will fulfill, when due, all necessary consents, waivers and approvals of parties its obligations under the Material Contracts that remain to any Contract as are required in connection with be performed after the Merger and date hereof.
(d) All outstanding indebtedness of the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals Company or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)its Subsidiaries may be prepaid without penalty.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) of the Company Schedule, the Company does not have, JSBW is not a party to nor is it bound by:
or otherwise subject to any or written (i) any collective bargaining agreements;
agreement; (ii) commitments for the employment of any agreements officer or arrangements that contain any severance pay or post-employment liabilities or obligations;
employee; (iii) any profit sharing, bonus, deferred compensation, stock option, severance pay, pension, profit sharing retirement or retirement planssimilar plans or agreements providing employee benefits; (iv) mortgages, indentures, notes or other agreements, contracts commitments or instruments for or relating to any borrowing of money on the deferred purchase price of property; (v) guarantees of any obligations for the borrowing of money or otherwise, or any other employee benefit plans agreement of guarantee or arrangements;
(iv) any employment or consulting agreementindemnification, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(v) any agreement or plan (including, any stock option plan, stock appreciation rights plan or stock purchase plan) any excluding endorsements made for collection in the ordinary course of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;
business; (vi) agreements, contracts or commitments for the purchase or sale of any fidelity assets or surety bond for the grant of any preferential rights to purchase any of its assets, properties or completion bond;
rights; (vii) any lease of real agreements, contracts or personal property having a value individually in excess of $25,000;
(viii) any agreement of indemnification, guaranty commitments or suretyship;
(ix) any agreement, contract or commitment other instruments containing any covenant limiting the freedom of the Company JSBW to engage in any line of business in any area of the world or to compete with any person;
person or entity or which constitute an undue material burden on the business, financial condition or properties of JSBW; (viii) continuing agreements, contracts or commitments for future purchase of materials, supplies or equipment, (ix) agreements, contracts or commitments relating to the issuance of any securities or capital expenditures involving future payments; (x) any agreementagreements, contract contracts or commitment commitments relating to the acquisition of the assets or a substantial part of the assets or capital expenditures or involving future payments in excess stock of $25,000;
any business enterprise; (xi) agreements, contracts or commitments with any agreementofficer, arrangementdirector, right, contract or commitment relating to the disposition or acquisition shareholder of assets, properties JSBW or any interest "associate" or affiliate thereof as the term is defined in any business enterprise outside the ordinary course Rule 405 of the Company’s business;
Securities Act; (xii) any mortgages, indentures, loans or credit continuing agreements, security agreements contracts, or other agreements commitments for the future sale of products or instruments relating to the borrowing rendering of money services by JSBW; or extension of credit, including guaranties or instruments of surety referred to in subparagraph (vi) above;
(xiii) agreements, contracts, commitments or other instruments of any purchase order kind, type or contract for the purchase of raw materials or the provision of services involving $10,000 or morenature. JSBW is not now, other than purchases in the ordinary course of business;
(xiv) nor since its inception has it ever become, a party to any construction contracts;
(xv) any distributionfranchise, joint marketingcontract, licensing or development agreement; or
(xvi) any other agreement, contract lease or commitment that involves or could result in payments to or by the Company of $25,000 or more or is not cancelable by the Company without penalty within thirty (30) days.
(b) 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 Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment other document to which it is a party or by which it or its assets or properties are or may be bound (any such agreement, contract or commitment, a “Contract”). Each Contract is in full force and effect and is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)bound.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a2.14(a) of the Company Disclosure Schedule, the Company does not havehave any continuing obligations under, is not a party to nor or is it not bound by:
(i) 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;obligations or is otherwise required by statute or case law to provide any of the foregoing,
(iii) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;,
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;,
(v) any agreement or plan (plan, including, without limitation, any stock option plan, stock share appreciation rights plan or stock 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 transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;by this Agreement, except as provided herein,
(vi) any fidelity or surety bond or completion bond;,
(vii) any lease of real or personal property having a value annual lease payments individually in excess of $25,000;$ 2,000,
(viii) any agreement of indemnificationindemnification or guaranty, guaranty or suretyship;other than intellectual property indemnification to customers in the ordinary course of business,
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;,
(x) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,000;2,000,
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties material assets or any interest in any business enterprise outside the ordinary course of the Company’s 's business;,
(xii) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties or instruments of surety referred to in subparagraph clause (viviii) above;hereof,
(xiii) any purchase order or contract for the purchase of raw materials or the provision of services involving $10,000 or morematerials, other than purchases purchase orders made in the ordinary course of business;business and involving not more than $2,000
(xiv) any construction contracts;,
(xv) any distribution, joint marketing, licensing 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
(xvixvii) any other agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 2,000 or more or is not cancelable by the Company 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, all as noted in Section 2.12(b2.14(b) of the Company Disclosure Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the material terms or conditions of (i) any agreement, contract or commitment required to be set forth in Section 2.14(a) of the Company Disclosure Schedule, or (ii) any other material agreement, contract or commitment to which it is a party or by which it or its assets or properties are or may be is bound (any such agreement, contract or commitmentcommitment referenced in the preceding clauses (i) and (ii), 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 and, except as otherwise disclosed in Section 2.14(b) of the Company Disclosure Schedule, is not subject to any default thereunder thereunder, of which Shareholder or the Company has knowledge is aware, by any party obligated to the Company pursuant thereto. The Company has obtained, or will obtain prior to the Effective TimeExchange Date, all necessary consents, waivers and approvals of parties to any Contract as are required thereunder in connection with the Merger and Share Exchange or to remain in effect without modification after the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (the “Requisite Consents”)Share Exchange.
Appears in 1 contract
Agreements, Contracts and Commitments. (a) Section 2.12(a) of the Company Schedule sets forth all contracts that are material to the business or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectively, the “Material Contracts”). Except as set forth in Section 2.12(a) 4.18 of the Company Schedule, as of the date of this Agreement, neither Company does not have, nor any of its subsidiaries is not a party to nor or is it bound by:
(i) 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, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iva) any employment or consulting agreement, contract Contract or commitment with an any officer, director or employee of Company or individual consultant or salesperson or consulting or sales agreementany of its subsidiaries (whether on a full-time, contract or commitment with a firm part-time or other organizationbasis), other than those that are terminable by Company or any of its subsidiaries at will without liability or financial obligation to Company (other than the obligation to pay accrued but unpaid salary and earned but unpaid leave following an employee’s termination of employment);
(v) any agreement or plan (including, any stock option plan, stock appreciation rights plan or stock purchase plan) any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or thereby;
(vi) any fidelity or surety bond or completion bond;
(vii) any lease of real or personal property having a value individually in excess of $25,000;
(viiib) any agreement of indemnification, indemnification by the Company or its subsidiaries or any power of attorney or guaranty other than any agreement of indemnification entered into in connection with the sale of products or suretyshiplicense of technology in the Ordinary Course of Business;
(ixc) any agreement, contract or commitment containing any covenant limiting the freedom right of the Company or any of its subsidiaries to engage in any line of business or to compete with any personperson or granting any exclusive distribution rights;
(xd) any agreement, contract or commitment relating to capital expenditures or involving future payments in excess of $25,000;
(xi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties by Company or any of its subsidiaries after the date of this Agreement of assets not in the Ordinary Course of Business or pursuant to which Company or any of its subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise outside other than Company’s subsidiaries;
(e) any dealer, distributor, joint marketing or development agreement under which Company or any of its subsidiaries have continuing obligations to jointly market any product, technology or service, or any agreement pursuant to which Company or any of its subsidiaries have continuing obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company or any of its subsidiaries;
(f) any agreement, contract or commitment to license any third party to manufacture or reproduce any Company product, service or technology or any agreement, contract or commitment to resell or re-distribute any Company products, service or technology;
(g) any agreement relating to the ordinary course licensing of source code, other than the licensing of sample source code as such term is used in the Company’s businessuser licensing agreements;
(xiih) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money by Company or any of its subsidiaries or extension of credit, including guaranties credit (other than customer accounts receivable owing to Company or instruments any of surety referred to its subsidiaries in subparagraph (vi) abovethe Ordinary Course of Business and payable or dischargeable in accordance with customary trade terms);
(xiiii) any agreement (or group of related agreements) for the lease of personal property to or from any person that involves aggregate annual payments of more than $10,000;
(j) any agreement (or group of related agreements) for the purchase order or contract sale of raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year or involve consideration in excess of $25,000;
(k) any agreement for the purchase of raw materials supplies, components, products or services from single source suppliers, custom manufacturers or subcontractors that involves aggregate annual payments of more than $25,000;
(l) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money or any capitalized lease obligation in or under which a security interest has been imposed on any of its assets, tangible or intangible;
(m) any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees;
(n) any agreement under which the provision consequences of services involving $10,000 a default or moretermination could have a Material Adverse Effect;
(o) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(p) any agreement pursuant to which Company is obligated to provide maintenance, support or training for its products, other than purchases in the ordinary course Ordinary Course of businessBusiness;
(xivq) any construction contractsagreement obligating the Company or any of its subsidiaries to deliver future product enhancements other than in the Ordinary Course of Business or containing a “most favored nation” pricing clause;
(xv) any distribution, joint marketing, licensing or development agreement; or
(xvir) any other agreement, contract agreement (or commitment that group of related agreements) the performance of which involves or could result consideration in payments to or by the Company excess of $25,000 or which is expected to continue for more than one (1) year from the date hereof, other than agreements relating to the sale and licensing of Company’s products, services or is not cancelable by technology, and licenses to use third party software entered into in the Ordinary Course of Business. Company has delivered or made available to Parent a correct and complete copy of each written agreement required to be listed in Section 4.18 of the Company without penalty within thirty (30) days.
(b) Except for such alleged breaches, violations Schedule and defaults, a written summary setting forth the terms and events that would constitute a breach, violation or default with the lapse conditions of time, giving of notice, or both, all as noted each oral agreement required to be listed in Section 2.12(b) 4.18 of the Company Schedule, the Company has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract or commitment . With respect to which it is a party or by which it or its assets or properties are or may be bound (any each such agreement, contract and with such other exceptions as would not have, individually or commitmentin the aggregate, a “Contract”). Each Contract Company Material Adverse Effect: (A) the agreement is legal, valid, binding, enforceable, and in full force and effect in all respects with regard to Company; (B) neither Company nor, to Company’s Knowledge, any other party is in breach or default, and is not subject no event has occurred, which with notice or lapse of time would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; (C) neither Company nor, to Company’s Knowledge any default thereunder other party to the agreement has repudiated any provision of which the agreement; (D) there are no disputes or forbearance programs in effect; (E) the Company has knowledge does not have any reason to believe that the service called for thereunder cannot be supplied in accordance with its terms; (F) the validity, effectiveness and continuation will not be materially adversely affected 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 as are required in connection with the Merger and the other transactions contemplated hereby by this Agreement; and (G) no party has any defense, set off or counterclaim or has exercised any option granted to it to cancel, terminate or shorten the term. Section 4.18 of the Company Schedule contains a true, complete and correct list of each bid or proposal (or series of related bids or proposals) currently being considered, promoted or negotiated by the Ancillary AgreementsCompany which, including all such consentsif accepted, approvals or waivers necessary would be required to validly transfer and assign all such Contracts to be listed in Section 4.18 of the Surviving Corporation (Company Schedule if effective as of the “Requisite Consents”)date hereof.
Appears in 1 contract
Sources: Merger Agreement (Vignette Corp)
Agreements, Contracts and Commitments. (a) Section 2.12(a) As of the Company Schedule sets forth all contracts that are material date of this Agreement, except pursuant to the business this Agreement or operations of the Company or which by their terms seek to limit or define those activities in which the Company is permitted or required to engage or which require any consent, approval or waiver by the other parties thereto in connection with this Agreement, any Ancillary Agreement, or the consummation of the transactions contemplated hereby or thereby (collectivelyhereby, the “Material Contracts”). Except as set forth in Section 2.12(a) of neither the Company Schedule, the Company does not have, nor any of its Subsidiaries is not a party to nor is it or bound by:
(i) any collective bargaining agreements;
(ii) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(iii) any bonusother than Employee Agreements, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(iv) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization;
(vii) any agreement or plan (plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan) , any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated hereby or therebyby this Agreement other than set forth on Schedule 4.21(a);
(viiii) any fidelity or surety bond or completion bond;
(viiiv) any lease of real or personal property having a value individually with fixed annual rental payments in excess of $25,00085,000;
(viii) any agreement of indemnification, guaranty or suretyship;
(ix) any agreement, contract or commitment containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person;
(xv) any agreement, contract or commitment relating to capital expenditures or and involving future payments in excess of $25,00085,000 either individually or in the aggregate;
(xivi) any agreement, arrangement, right, contract or commitment relating to the disposition or acquisition of assets, properties assets or any interest in any business enterprise entered into outside the ordinary course of the Company’s business;
(xiivii) other than as set forth on Schedule 4.21(a), any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties other than those mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments that are not, individually or in the aggregate, material to the Company or any Subsidiary of surety referred to in subparagraph (vi) abovethe Company;
(xiiiviii) any purchase order or contract for the purchase of raw materials materials, supplies, goods, services, equipment or other assets involving payments by the provision Company or any of services involving its Subsidiaries in excess of $10,000 35,000 individually or more$200,000 in the aggregate;
(ix) any agreements for the acquisition by the Company of stock, assets or other property pursuant to which the Company was, is or may be required to make deferred payments of cash, stock or other property or providing for an adjustment of the purchase price paid by the Company, in each case that has not been paid in full and is not subject to further adjustment;
(x) other than purchases as set forth on Schedule 4.21(a), any agreements for the payment of royalties by the Company or any of its Subsidiaries;
(xi) any software development agreement or other agreement for development or authorship of products and services for the Company or any of its Subsidiaries other than as set forth on Schedule 4.21(a);
(xii) other than as set forth on Schedule 4.21(a), any sales representative, original equipment manufacturer, value added reseller, remarketer, dealer, distribution, joint marketing or other agreement for distribution of the Company’s products or services;
(xiii) any license, sales, distribution or other similar agreement providing for the license or sale by the Company or any of its Subsidiaries of software, services or assets that accounted for in the ordinary course most recent fiscal year or that is expected to account for in the current fiscal year either annual payments to the Company and its Subsidiaries of business$75,000 or more individually or $125,000 or more in the aggregate or payments by the Company and its Subsidiaries of $75,000 or more individually or $125,000 or more in the aggregate;
(xiv) other than as set forth on Schedule 4.21(a), any construction contracts;
(xv) any distributionpartnership, joint marketing, licensing venture or development agreementother similar agreement or arrangement; or
(xvixv) any other agreement, contract or commitment that involves or could result in payments to or by the Company of $25,000 75,000 or more or is not cancelable by the Company without penalty within thirty (30) 30 days.
(b) Except for such alleged breachesNeither the Company nor any of its Subsidiaries is, violations and defaultsin any material respect, and events that would constitute a in breach, violation or default with the lapse of time, giving of notice, or both, all as noted in Section 2.12(b) of the Company Schedule, the Company has not breached, violated or defaulted under, or has received any notice that it the Company or any of its Subsidiaries has breached, violated or defaulted under, any of the terms or conditions of any agreement, contract contract, covenant, instrument, lease, license or commitment to which it is a party or by which it or its assets or properties are or may be bound listed in Schedule 4.21 (any such agreement, contract or commitmentcollectively, a “Contract”) (except for notices relating to breaches, violations or defaults that have been cured or corrected in all material respects), nor does the Company have any Knowledge 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 a valid and binding agreement of the Company or its Subsidiary, as the case may be, is in full force and effect and is not subject to any default thereunder of which in any material respect by the Company has knowledge by or its Subsidiary, as the case may be, or, to the Company’s Knowledge, any party obligated to the Company pursuant thereto. The Company has obtainedPursuant to the terms of the Contracts, or will obtain prior to following the Effective Time, all necessary consents, waivers and approvals of parties to any Contract as are required in connection with the Merger and the other transactions contemplated hereby and by the Ancillary Agreements, including all such consents, approvals Parent or waivers necessary to validly transfer and assign all such Contracts to the Surviving Corporation (will be permitted to exercise all of the “Requisite Consents”)Company’s or its Subsidiary’s rights, as the case may be, under the Contracts without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Company or its Subsidiary would otherwise be required to pay had the transactions contemplated by this Agreement not occurred.
Appears in 1 contract
Sources: Merger Agreement (Netiq Corp)